1. I will speaking on patent remedies at two upcoming events. First, on Tuesday, March 3, at 3 p.m. I will be presenting a 90 minute talk at Robins Kaplan LLP in Minneapolis titled "The Changing Landscape of Patent Damages." The event is not listed yet on the firm's website but should be shortly. Here is the description:
Over the past decade, eight-, nine- and even ten-figure damages awards have become a recurring feature in U.S. patent litigation. At the same time, the law of patent damages itself has undergone a sea change as a result of Supreme Court and Federal Circuit case law, while Congress, the Federal Trade Commission, and other bodies all have considered or advocated further reforms. During this 75-minute CLE, Professor Thomas F. Cotter will focus on cutting-edge damages issues including: (1) the different methodologies courts use for determining lost profits; (2) changes to the law of reasonable royalties, including use of the entire market value rule, the 25% rule of thumb, and the ‘book of wisdom’; the “hypothetical bargain” versus the analytical approach for calculating royalties; and the admissibility of expert testimony based on methodologies such as the Nash Bargaining Solution and conjoint analysis; (3) awards of ongoing royalties when courts deny injunctive relief post-eBay; (4) awards of fair, reasonable, and nondiscriminatory (FRAND) royalties for the infringement of standard-essential patents; (5) awards of infringers’ profits as a remedy for design patent infringement (Apple v. Samsung); and (6) recent changes (and prospects for further changes) to the standards for recovery of attorneys’ fees and enhanced damages for willful infringement.
Second, on Friday, March 20 I will be presenting a 6 1/2 hour (yes, you read that correctly) CLE at the University of Minnesota Law School titled "Patent Remedies and Patent Assertion Entities." Here is a link to information on the entire CLE series. Here is the description of my talk:
This course will provide a comprehensive guide both to the fast-changing law of patent remedies (injunctions, damages, and declaratory judgments) and to possible legislative and judicial responses to patent assertion entities (PAEs), companies that sometimes pejoratively are referred to as ‘patent trolls.’ The morning session will cover recent changes to the law of preliminary and permanent injunctions in the wake of eBay v. MercExchange, including Federal Circuit case law on irreparable harm, substantial merit, and causal nexus; whether PAEs, owners of standard-essential patents (SEPs), and other entities are now effectively precluded from obtaining injunctive relief; how courts determine ongoing royalties when they deny injunctions; and the availability of exclusion orders before the International Trade Commission. In addition, it will cover the law of patent damages, including lost profits and reasonable royalties, with discussion focusing on matters such as use of the entire market value rule and the ‘book of wisdom’; the hypothetical bargain versus the analytical approach for calculating royalties; and the admissibility of expert testimony based on methodologies such as the Nash Bargaining Solution and conjoint analysis. The afternoon session will cover accountings of infringers’ profits as a remedy for design patent infringement; the Supreme Court’s recent decisions on, and possible legislative changes to, the law on recovery of attorneys’ fees; developments in the law of enhanced damages for willful infringement; awards of prejudgment interest; and the law of declaratory judgments as reflected in the Supreme Court’s recent decisions in MedImmune and Medtronic. Finally, the session will conclude with an overview of the theoretical and empirical evidence for and against charges that are sometimes leveled against PAEs, as well as various possible claims that might be brought against these entities under unfair competition, antitrust, consumer protection, or newly enacted state or federal laws. Throughout, the course will focus principally on U.S. law but also, given the global nature of many patent disputes in the modern world, will highlight instances in which the law of other major patent systems is similar or different.
2. I also will be speaking at three other upcoming events that are not limited to patent remedies (though two of the three will touch on the subject, among others). First, this coming Friday (February 7) I will be presenting "Legal Pragmatism and Intellectual Property" at a conference at the University of Bayreuth, which I previously mentioned here. Second, on Tuesday, February 10 I will be participating in an ABA IP Roundtable at the Briggs and Morgan firm in Minneapolis on "The 3D Revolution: IP Issues Arising from the Proliferation of 3D Printing." Information is available here. Third, on Friday, February 27 I will be on a panel titled "The Rule of Reason After Actavis" at the University of San Francisco School of Law's conference "After Actavis: Litigating Reverse Payment Cases." Here is a link.
It's going to be a busy couple of months! As always, I hope some of my readers will be able to attend these events--I'm always happy to meet you.
3. The ABA Section of Intellectual Property Law is sponsoring a couple of upcoming remedies-related events as well. First, it is a cosponsor of a February 17 webinar titled "Attorney's Fees, Costs and Other Fee-Shifting Measures in Patent and Trademark Litigation." Information is available here. Speakers include Kara Fussner, Naomi Jane Gray, Jared Egan Hedman, and Andrew Williams. Here is the description:
This program will provide you with an understanding of the different means by which attorney's fees and costs can be recovered in patent and trademark lawsuits. It will also include discussion on how the standards for recovering such fees and costs have changed in light of recent Supreme Court cases, often referred to as Octane Fitness and Highmark, and examples of recent motions for attorney's fees in the district courts. The panel will offer practical considerations for seeking and defeating motions for such fees and costs, and whether such fees can be imposed on an attorney.Second, the ABA IPL Section is holding its 30th Annual Intellectual Property Conference in Bethesda, Maryland, from March 25-27 (link here). Among the many programs on patents, copyrights, and trademarks is one on Thursday, March 26 at 3:30 titled "Modern Approaches to Calculating Reasonable Royalty Damages," which is described as follows:
The Federal Circuit is fundamentally transforming patent damages. Old rules of determining a reasonable royalty are being upended, as the Federal Circuit has increasingly scrutinized methods used for the calculation and the evidence relied on at trial, and is therefore establishing new rules. Patent owners and accused infringers alike need to incorporate the Federal Circuit’s guidance into litigation strategies going forward. This program will shed light on how to present reasonable royalty damages theories at the district court and appellate stages of litigation.
Speakers are Matthew Blackburn, Andrew Carter, William Choi, and Gregory Pinsonneault. Also of particular interest to readers of this blog may be two other sessions, the first being a Wednesday, March 25 session at 1 p.m. titled "Smartphones and the Patent Battleground: Is Peace at Hand?" Here's the description:
The smartphone wars continue to rage around the world, in and out of court. Patent portfolios, used offensively and defensively, are increasingly involved in smartphone skirmishes. The skirmishes’ outcomes fundamentally impact the national and international mobile device landscapes. Has the world as we know it ended? Or will the combatants fight back to the pre-smartphone wars status quo? The discussion among expert panelists will revolve around these and similar questions, dissecting recent developments in the global smartphone wars, assessing combatants’ grand strategies and tactics, and analyzing the wars’ possible outcomes and impact to industry.Speakers incolude Deanna Tanner Okun, Hon. Theodore Essez, Kirti Gupta, David Long, and Richard Taffet. Second, there is a Friday, March 27 session at 3:30 p.m. titled "Hot Topics in Antitrust/IP," which is described as follows:
This program will cover the fundamentals of current hot topics in the Antitrust/IP intersection. Recent antitrust mergers involving technology companies and conduct cases will be reviewed. Specific topics will include reverse payments, pay for delay, SEPs, the FTC PAE study and other related topics.Speakers include Jorge Contreras, Rosanna Lipscomb, Michael McFalls, Suzanne Munck, and Scott Sher.