Coalition for Patent Fairness and
Financial Services Roundtable last week
wrote Senators Leahy, Hatch, and Specter, tweaking a smidge their insistence on
damages apportionment as a sure means to clog the courts, maximize litigation
cost, and eviscerate patent enforcement. Modification to current language in the
Senate bill for damages apportionment is copasetic, as long as "the law makes
clear the inventor must prove the inclusion of the invention in a product is
what predominantly causes consumers to purchase the product." In other words, a
plaintiff would have to prove that the product is purchased for its infringing
Critical to success of patent reform under the model of Leahy S. 1145 is
compromise on several key issues, and particularly the elimination of the
most controversial damages apportionment provision. The
Alliance (BSA) has now thrown what must be considered the ultimate bomb to
blow up any realistic chance of compromise through its March 5th letter to
the United States Senate with its "compromise" proposal for damages
The BSA's new statutory proposal requires "an analysis to ensure that a
reasonable royalty is determined on the basis of the portion of the economic
value of the infringing product ... that is properly attributable to the
infringer's use of the elements of the invention that were novel and
nonobvious ... and shall permit the jury to hear only evidence relating to
that economic value."
Editors: Roadmap to Hell Jimmy Carter may have nothing but good intentions. But by helping Hamas look like something other than what it plainly is -- an uncompromising gang of would-be genocidists -- he has placed himself in the service of evil.
Retributive Damages: How much and to whom In earlier posts gathered here, I laid out the Introduction and some relevant background regarding punitive damages law, recent scholarship, and retributive justice. Yesterday's post articulated some of the basic structure for retributive damages, focusing on what misconduct should be the subject of retributive damages and whether non-victims of wrongdoing should be empowered to bring claims for retributive damages (and if so, under what restrictions)...
Retributive Damages: Some Constitutional Analysis In earlier posts gathered here, I laid out the Introduction and some relevant background regarding punitive damages law, recent scholarship, and retributive justice. Subsequent posts addressed: which misconduct should be the subject of retributive damages and whether non-victims of wrongdoing should be empowered to bring claims for retributive damages (and if so, under what restrictions); how to bring rationality and fairness to determining the amount of retributive damages; and how to allocate the retributive damages among the state, lawyer and plaintiff...
Fifth District: The Trouble With Trebles Florida's civil theft statute allows a plaintiff to recover treble damages. Does that mean total damages are three times the actual damages amount or that three times the amount of actual damages should be added to the actual damages amount? The Fifth District answered that question here...