Judge Posner Orders Early Briefing On Whether Plaintiff Would be Entitled to "Nontrivial" Damages

Following a preliminary conference, the court sua sponte expressed its concern about whether plaintiffs would be entitled to "nontrivial damages" if they established liability and ordered the parties to submit briefs on the issue. "Suppose the defendants infringed the asserted patents but that none of the defendants marketed its products as low in bad cholesterol (LDL) or high in HDL, or as having a high ratio of HDL to LDL; and suppose further that the defendants obtained no cost savings by infringing the patents rather than using some non-infringing recipe and that neither [plaintiff] nor its licensee . . . lost any business as a result of the infringement. On those assumptions, would the plaintiffs have any claim for damages, whether compensatory or punitive, or restitution? I would like the parties to address this question in briefs filed simultaneously by close of business on April 2."

Brandeis University et al v. Nestle USA, Inc., 1-12-cv-01513 (ILND March 16, 2012, Order) (Posner, J.)