In determining an ongoing royalty rate for defendant's post-verdict infringement through a "colorable variation" of the adjudicated product, the court imposed plaintiff's proposed rate of 23% where the jury had based its damages on a rate of 20%. "The Federal Circuit has instructed that post-verdict infringement should typically entail a higher royalty rate than the reasonable royalty found at trial. [T]he Court adopts a methodology that recognizes the effect of a jury verdict on the parties’ bargaining position as they enter into a hypothetical negotiation."
Creative Internet Advertising Corp. v. Yahoo! Inc. et al., 6-07-cv-00354 (TXED December 9, 2009, Memorandum & Opinion) (Love, M.J.)
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