The $5.72 Billion Jury Award in Taction v. Apple

Readers probably have already heard that on Friday a jury awarded damages in the amount of $5.72 billion in Taction Technology, Inc. v. Apple Inc., No. 3:21-cv-00812-TWR-JLB (S.D. Cal.).  This case has been the subject of one previous Federal Circuit appeal, which resulted in a nonprecedential opinion in August 2025 vacating a summary judgment of noninfringement based in part on an erroneous claim construction.   As the Federal Circuit explained at that time, the patents in suit “share a common specification and relate ‘to tactile transducers that produce bass frequency vibrations for perception by touch,’ with each asserted claim “requir[ing] damping the moving portion’” of the apparatus.  Taction claimed that certain iPhones and Apple Watches with haptic (“the science of enabling interaction with technology through the sense of touch, including, for example, using vibrations”) technology infringed the patents in suit.  

Anyway, the case went to trial this month, and on Friday the jury found that Apple infringed claims 17 and 19 of U.S. Patent No. 10,659,844 and claim 16 of U.S. Patent No. 10,820,117; that Taction proved its damages to be $5,721,961,750; and that the infringement was not willful (so no risk of trebling, at least!).  This is the largest patent damages award in U.S. history—though as others have noted, stratospheric awards like this rarely survive intact, following post-trial motions and appellate review for possible substantive legal errors and/or errors specifically relating to damages calculation.   

I don’t know a great deal yet about the damages issues.  A quick review, however, of the parties’ trial briefs on damages (see here and here), the jury instructions, and a couple of pretrial evidentiary rulings reported on Westlaw (see 2026 WL 2608208 and 2026 WL 2325817) indicate, if I understand correctly, that Taction relied primarily on the “Corsair” license as a comparable, but that the district court excluded the royalty amount in the Corsair license, and the testimony of Taction's damages expert, for failure to adequately apportion the value attributable to the patents in suit in this case.  Taction's September 20 damages brief therefore instead relies on lay testimony that “the cost of ferrofluid required to implement the patented technology in the Corsair product was approximately 20 cents per unit,” and that this cost “is limited to implementing the patented technology and does not relate to the only other technology licensed,” so that "20 cents provides a minimum for a per unit reasonable royalty and, at the very least, provides a data point for the jury to consider in addition to the other evidence":  "[a] party would not pay 20 cents for just one component to implement the infringing technology unless the value that the technology provides exceeds that amount."  Apple counters that without a royalty amount from the Corsair license in evidence, or admissible evidence on how to apportion such a rate, there isn't enough here to justify anything more than nominal damages.  (Apple cites Rex Medical, L.P. v. Intuitive Surgical, Inc., 156 F.4^th 1289 (Fed. Cir. 2025), as precedent for an award of nominal damages, on the ground, contested by Taction, that that case involved “materially identical facts” including a failure to apportion.  For discussion of Rex on this blog, see here.)  Apple further argues that the testimony about the cost of ferrofluid doesn't overcome these problems, because "ferrofluid is not the claimed invention, and a contribution attributable to an unclaimed component is not an apportionment of the patents' value." 

Reports on Bloomberg, Law360, and ip fray provide some further background on the case, including that the plaintiff’s suit is funded by two related litigation financing entities. 

Update:  I should note that it is not immediately obvious to me how you get to $5.72 billion, even if you credit the plaintiff's argument about the cost of ferrofluid being a relevant reference point.  At 20 cents per unit, you'd have to sell over 28 billion units to get to $5.72 billion.  Apple surely sells a lot of iPhones and Apple Watches, but given earth's population of about 8.3 billion people, that would be about 3.44 products per person.  I suppose we will see what other evidence comes out post-trial and on appeal.