U.S. Supreme Court Asked to Review Two Patent Damages Cases

1.  A cert. petition was filed yesterday in Rudolph Technologies v. Integrated Technology Corp.  I consulted on this matter and won't be addressing the merits here, but interested readers may access the petition here.  The questions presented are:

1. Whether issues of law impacting patent damages should be reviewed de novo—like all other issues of law—or whether they should be reviewed under the deferential substantial evidence standard.

2. Whether a patentee may obtain “lost profits” damages under a “two-supplier market” theory even when there are non-infringing alternatives. 

2.  As reported in Bloomberg BNA's Patent, Trademark & Copyright Law Daily last week, a cert. petition also was filed recently in Voda v. Medtronic, Inc., presenting the following two questions relevant to awards of enhanced damages and attorneys' fees:

1. Whether a jury's finding that a party's litigating position is illegitimate or incredible for purposes of finding willfulness is subject to de novo review; and

2. Whether a determination that a defendant's litigation position is illegitimate or incredible suffices for a patentee to establish an exceptional case in the absence of litigation misconduct?

The first question calls into dispute the Federal Circuit's holding that willfulness, a prerequisite for an award of enhanced damages, is a question of law (see my book p.144).  The second overlaps with the question presented in Octane Fitness, which I blogged about last week.  The petitioner requests that the Court hold the petition pending its decisions in Highmark and Octane Fitness, after which it should grant the petition, vacate, and remand.