Thursday, January 5, 2017

Royalty for Ongoing Willful Infringement Awarded at Double the Rate Determined by Jury​

Following a jury verdict and failed mediation, the court granted plaintiff's motion for an ongoing royalty that was twice the rate determined by the jury. "[Defendant] counters that the rate determined by the jury is appropriate and that, in any event, an ongoing willful infringer should still be able to derive a profit from post-judgment infringing sales. The Court does not find [defendant's] first argument to be well-taken, principally because of the change in the parties’ relative bargaining positions following the jury verdict. . . . In this case, [plaintiff's] bargaining position is significantly different, precisely because the jury determined validity and infringement. . . . A consideration of the applicable [Read v. Portec, 970 F.2d 816 (Fed. Cir. 1992)] factors also supports [plaintiff's] requested rate . . . especially with respect to factors 2 (good-faith belief of invalidity and non-infringement) and 4 (litigation behavior). Following the jury verdict and a determination that [defendant's] infringement was willful, [defendant] cannot have a good-faith belief of the invalidity of the patent-in-suit."

Arctic Cat Inc. v. Bombardier Recreational Products Inc. et al, 0-14-cv-62369 (FLSD January 3, 2017, Order) (Bloom, USDJ)

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