Morpho Detection, Inc. v. Smiths Detection, Inc., 2-11-cv-00498 (VAED October 17, 2013, Order) (Davis, J.)
Tuesday, October 22, 2013
25% Enhancement For Ongoing Royalty
Following a jury verdict of $7,500 per device, the court granted in part plaintiff's motion for an ongoing royalty of $9,375 per device. "Although [defendant] argues that it is far along in the process to design around [plaintiff's] patent, and that [defendant] will retrofit any infringing units sold after [the date of the clerk's judgment] with such noninfringing technology, [defendant] acknowledges that its design around work did not commence until after the jury returned its verdict of validity and infringement and [it] is still speculating as to when such design around will be complete as well as whether it will be acceptable to [its] customers. . . . In contrast . . . [plaintiff] offers a compelling argument that after the jury's verdict, any post-infringing sales to third parties were/are made with a substantially diminished belief that such sales are permissible non-infringing sales. . . . [H]aving considered both parties' arguments as to changed circumstances . . . the Court finds that an ongoing royalty 25% higher than that found by the jury is appropriate in this case."