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Order Awarding Damages for Post-Verdict Sales

By Michael C. Smith

Cummins-Allison Corp. v. SBM Co., Ltd., --- F.Supp.2d ----, 2009 WL 3855958 (E.D.Tex. Nov 13, 2009) (NO. CIV.A. 9:07CV196)
Judge: Ron Clark
Holding: Order re: Damages for Post-verdict Sales of Infringing Products
This order arose in the context of sales made after the date of the verdict for the plaintiff and before the date the court entering an injunction to prevent future infringing conduct.
In this case, pursuant to notice given to the parties well before trial, the jury was asked to determine future damages, and arrived at a royalty rate of $400.00 per infringing unit sold. Judge Clark concluded that there was substantial evidence to support this finding. In accordance with 35 U.S.C. § 284, and after considering the Seagate factors, Judge Clark determined that Defendants' post-verdict sales were willful and thus enhanced the jury's award to $500.00 per infringing unit sold.
Judge Clark's order is a very helpful analysis of the law - constantly evolving though it may be - on the issue of future damages in patent cases.

Full post as published by Eastern District of Texas Federal Court Practice on November 20, 2009 (boomark / email).