Next Friday, March 20, I will be presenting a 6 1/2 hour continuing legal education program titled "Patent Remedies and Patent Assertion Entities" at the University of Minnesota Law School (part of our week-long "Super CLE" program). Anyone unable to attend in person may participate through a live webcast available through WestLegalEdcenter, part of Thomson Reuters. Information on registration and on all of the programs is available here. Here is the blurb for my program:
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.