Last Thursday was a busy day for the Federal Circuit. In addition to issuing an opinion in Ericsson v. D-Link (for my post, see here), a panel consisting of Judges Prost, O'Malley, and Chen heard oral argument in the Apple v. Samsung appeal. Two big damages issues on appeal are whether section 289 of the U.S. Patent Act requires the disgorgement of the entire profit earned from the sale of a product that infringes a design patent (see here), and whether Apple was entitled to damages for trade dress dilution. Here is a link to the recording of oral argument, and here is a write-up from the Wall Street Journal.
In addition, on Monday, December 1, a panel consisting of Judges O'Malley, Clevenger, and Bryson. heard oral argument in Apotex v. Astrazeneca (for previous posts on this case, see here, here, and here). Here is a link to the recording of oral argument, and here is a write-up from Law360. Some interesting discussion of whether damages can be based on "holdup" or switching costs--particularly in response to questions by Judge Bryson who, however, didn't seem to be distinguishing between ex post switching costs (which in my view are the ones that should be considered as holdup costs and shouldn't be reflected in the damages award) and the advantages of the patented invention over alternatives (which should).
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