Tuesday, March 9, 2021

Nominal Damages for Patent Infringement?

I admit that, in view of last week's $2 billion judgment against Intel in the Western District of Texas--and two more decisions reported today on Law360, one in the amount of $172.6 million in an action brought by Wapp Tech LP, and another in the amount of $62.7 million in an action brought by Solas LED, both emanating from the Eastern District of Texas and both subject to a possible enhancement--it might seem quaint to be discussing whether courts can ever award nominal damages for patent infringement.  As I discussed in a post a few weeks ago, however, the issue can come up in a case in which the court excludes the plaintiff's damages evidence on Daubert grounds, or the patented technology is no better than the next-best available noninfringing alternative (or perhaps also when the defendant makes an infringing article but then doesn't do anything with it).  In such a case, is the trier of fact obligated to award some sort of damages, based on whatever evidence may be in the record?  Or (if injunctive relief is also off the table, under eBay) should the court dismiss the case as moot?  I may take this issue up in a forthcoming paper, but for now I will note only that the Supreme Court yesterday issued its decision in the civil rights case (Uzuegbunam v. Preczewski) that prompted my post in January.  In an 8-1 decision, the Court held that nominal damages are available in such a case, and that the matter is not moot, even if the defendant has ceased its offending conduct.  I'll be giving some thought over the coming weeks to whether the Court's reasoning has any relevance to patent or other IP damages regimes.  (Based on my first reading of the opinion, though, I would say that the majority's reasoning seems broadly applicable.)  Meanwhile, if any readers have thoughts on this issue, please share them with me.     

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