Patent Law

The following is excerpted from a February 11, 2010 Morgan Lewis Intellectual Property Lawflash:

Last fall, in its decision in Lucent v. Gateway, the Federal Circuit vacated a $357 million verdict, signaling to litigants and district court judges that ?speculation? and ?superficial testimony? were insufficient to support the amount of damages awarded. Last week, in its February 5 opinion in ResQNet.com, Inc. v. Lansa, Inc., the appellate court delivered a similar message, albeit on a smaller scale?this time vacating a damages award of $506,305. In doing so, the court provided detailed guidance on the important issue of which prior licenses can be used to set the royalty rate in a patent case.

The court reasoned that the royalty analysis ?must consider licenses that are commensurate with what the defendant has appropriated. If not, a prevailing plaintiff would be free to inflate the reasonable royalty analysis with conveniently selected licenses without an economic or other link to the technology in question.?

Access the complete Lawflash and a link to the opinion here.