Failure to Mitigate Damages Defense "is not Inappropriate" in Patent Infringement Case

The court denied plaintiff's renewed motion for judgment on the pleadings as to defendants' defense of failure to mitigate. "Plaintiff argues that failure to mitigate damages is not a defense in a patent infringement case because it cannot find any case law discussing this defense in the context of patent infringement and certain treatises on patent law do not discuss it. Plaintiff also argues that this 'makes sense because . . . a patent holder has no recourse when faced with an infringer but to seek a license and, if one is declined to sue for infringement.' The Court finds these arguments are without merit. . . . Here, Plaintiff is the injured party seeking compensatory damages for the alleged patent infringement. In determining compensatory damages for patent infringement under 35 U.S.C. § 284, the focus is on compensating the patentee or the plaintiff for this injury. . . . Thus, it is entirely appropriate for a defendant to assert a defense of failure to mitigate damages when considering what amount of compensation is appropriate for Plaintiff, the injured party in this action. Such a defense may rarely be relevant in a patent infringement case, but it is not inappropriate."

IMX, Inc. v. E-Loan, Inc. et al., 1-09-cv-20965 (FLSD November 1, 2010, Order) (Martinez, J.).