1. Jason Reinecke has posted a paper on ssrn titled Lost Profits Damages for Multicomponent Products: Clarifying the Debate, __ Stanford L. Rev. __ (forthcoming). Here is a link, and here is the abstract:
In Mentor Graphics Corp. v. EVE-USA, Inc., the Federal Circuit determined that the “but for” compensatory damages test applies to calculate lost profits damages in patent infringement cases over multicomponent products. The court rejected Synopsys’s argument that because multicomponent products necessarily have many important features beyond the one or two that are infringing, the court should only award the plaintiff the portion of “but for” damages that are apportionable to the infringing features. Although some scholars have supported the decision, many scholars believe that the Mentor Graphics rule will tend to overcompensate patentees and that an apportionment rule would be best.
I offer a comprehensive economic framework for implementing the Mentor Graphics “but for” compensatory damages scheme in scenarios that were not before the court in Mentor Graphics but will arise in the future in this complex multicomponent world. By exploring the implications of this framework, I provide needed clarity to the Mentor Graphics debate. First, I show that a properly constructed compensatory damages rule and the apportionment rule advocated for by Synopsys and many scholars operate far more similarly than commentators currently believe.
Second, I show that if my proposed framework is adopted, then each of the concerns expressed by scholars over the Mentor Graphics rule is either alleviated, overstated, or in need of some revision. I conclude by clarifying exactly what might be concerning about the Mentor Graphics rule.
I read this paper in draft, and thought it was quite good.
2. Daniel Fanning has published a student note titled Enhanced Damages: Historically, Recently, and Why Willfulness is not a Prerequisite, 42 S. Ill. Univ. L. Rev. 477 (2018). Here is a link, and here is the abstract:
This Note provides a history of enhanced damages leading to the enactment of 35 U.S.C. § 284, including an overly complex judicial doctrine for the application of the statutory grant of enhanced damages, and finishes with an explanation of why this doctrine should not include a requirement for a finding of willfulness. Part II covers the initial history and development of the doctrine of enhanced damages, including the statutory framework and the courts’ interpretation of that framework. Part III reviews two recent cases that drastically changed the award of enhanced damages. Finally, Part IV expands on both the history and recent decisions while explaining that a finding of willfulness should not be a prerequisite for a court to exercise its statutory discretion to enhance damages.
3. Gert Würtenberger has published an article titled First Contours of European Law on Damages in IP Infringement Cases, in the August-September 2018 issue of GRUR Int. (pp. 725-31). Here is the abstract:
The value of intellectual property rights depends in part by the efficiency of the enforcement system in cases of infringement. Compensation of damages, as consequence of the infringement of intellectual property right, has specific importance as an instrument to guarantee this value. Since the legal systems of the Member States of the European Union provide partly different approaches in this matter, the Union has initiated harmonization of national laws and introduced Union-wide valid intellectual property rights accompanied by legal measures, such as the Anti-Piracy Directive and the Directive on the Enforcement of Intellectual Property Rights (Enforcement Directive). This article analyses the jurisprudence of the Court of Justice of the European Union (CJEU) by defining more precisely the compensation of damages provided in the Enforcement Directive.