Willfulness Enhancement for Past Infringement Guides Enhancement for Ongoing Royalty

The court granted in part plaintiff's motion to set an ongoing royalty rate for sales of adjudicated phones and set the rate higher than the jury's implied rate ($0.355/phone) but lower than plaintiff's requested rate ($1.06/phone). "Typically applied to awards for past damages, the [Read Corp. v. Portec, Inc., 970 F.2d 816 (Fed. Cir. 1992)] factors can also provide guidance in determining whether and how much damages should be enhanced in light of Defendants’ ongoing willful infringement. The Court already considered the Read factors to address [defendant's] prior willful infringement and enhanced the jury verdict by 1.65x. . . . [Defendant] concedes it continued to sell an infringing model . . . post-verdict. . . . Considering [defendant's] post-verdict conduct and the Court’s prior enhancement of the jury verdict, the Court orders [defendant] to pay [plaintiff] an ongoing royalty of $.60 per phone on all adjudicated models."

Fractus, S.A. v. Samsung Electronics Co., Ltd., et. al., 6-09-cv-00203 (TXED March 15, 2013, Order) (Davis, J.).