Interesting Weekend Posts on Damages on FOSS Patents, Sufficient Description

1.  At FOSS Patents, Florian Mueller published an interesting post on Saturday on the Oracle v. Google copyright damages matter pending before U.S. District Judge Alsup in the Northern District of California.  Though it's a copyright case, the resolution of the damages issues should be of interest to patent scholars as well.  According to the post, "Oracle . . . argues that a disgorgement analysis should not consider non-infringing alternatives ("NIAs")."  Although I don't study copyright damages as much as I used to, and would like to review whatever authority Oracles and/or the court cites in favor of this position (something I haven't done yet), that's not my understanding of the applicable law--though it is the Federal Circuit's current understanding in U.S. design patent law, pending Supreme Court review in Samsung v. Apple, where the relevant statutory language can be read as entitling the plaintiff to recover the defendant's total profit from sales of infringing goods.  In any event, I heartily agree with Mr. Mueller that as a matter of policy such a rule is misguided.

2.  At Sufficient Description, Norman Siebrasse published a post on TearLab Corp. v. I-Med Pharma Inc., 2016 FC 350, a recent Canadian decision in which a court denied a preliminary injunction on the ground that, inter alia, that the "mere difficulty of calculating damages does not constitute irreparable harm."  Professor Siebrasse argues that "that there are practical reasons why evidence of the accuracy of damages assessment is unlikely to be forthcoming" at the preliminary injunction stage, and that requiring too strict a showing of irreparability might put patent owners in a bind if, eventually, they wind up trying to prove their damages at trial.  These are valid points that deserve further consideration.  For what it's worth, I'd inclined to think that mere difficulty in calculating damages that are in principle calculable normally shouldn't count as "irreparable harm"; damages are often difficult to calculate, and there's always going to be a risk of error.  Rather, "irreparable harm" could rest on the likelihood of incurring categories of harm that tend towards being inherently incalculable, such as interim losses of market share that might be hard to make up for ex post or losses of consumer goodwill.  (And I note that the plaintiff did allege these harms as well, though apparently the evidence of their existence or incalculability didn't move the judge on the record presented, see opinion para. 35.)  But I need to think about these matters further.