Damages Category Archives — Patent Lawyer Blog Published By Patent Lawyer

Published on: September 14, 2026

After $9.4 Million Willfulness Verdict, District Court Grants Permanent Injunction and Attorneys’ Fees Based on Defendant’s Litigation Conduct

A federal district court in Texas has granted a patent owner a permanent injunction, more than $4.5 million in pre-judgment interest, and its attorneys’ fees following a willful infringement verdict. The district court based the fee award on the defendant’s litigation conduct, including its repeated reliance on a prior art reference the district court had stricken.

In SnapRays, LLC dba SnapPower v. American Tack & Hardware Company, Inc., Chief Judge Reed O’Connor of the Northern District of Texas resolved the parties’ post-trial motions after a May 2026 trial in which a unanimous jury found that each of the asserted claims of SnapPower’s patents was valid and willfully infringed by American Tack, and awarded SnapPower $9,423,533.52 in damages. The patents cover powered cover plates that draw power through prongs or clips without being hardwired.

On the permanent injunction, the district court found SnapPower “can readily demonstrate the four eBay factors.” The trial record showed that American Tack and SnapPower are the two major players in the powered cover plate market, that SnapPower entered the market first with a popular novel product, and that American Tack’s “own executive suite repeatedly stated in emails—emails it was reticent to produce in discovery—that it was eager to copy the novel product but was aware that SnapPower’s products were likely covered by patent protections.” The entry of American Tack’s accused products coincided with a precipitous fall in SnapPower’s sales, and because SnapPower initially sold direct-to-consumer, American Tack “had cornered the market with infringing products” by the time SnapPower approached large retailers. The district court found reputational harm in the market could not be adequately redressed with legal remedies because “[i]t is difficult to quantify lost market share, brand recognition, and customer goodwill.”

Published on: September 8, 2026

In French Fry Design Patent Battle, District Court Denies Post-Trial Motions And Reinforces the Significance of Rule 50 Motions

by Stan Gibson

A federal district court in Idaho has denied McCain Foods’ motions for judgment as a matter of law and for a new trial, leaving intact a jury verdict that McCain’s “Twisted Potato” French fry willfully infringed J.R. Simplot Company’s design patent and that McCain’s own design patent is invalid and not infringed.

In J.R. Simplot Company v. McCain Foods USA, Inc., Judge David C. Nye rejected every ground McCain raised, in a decision that touches on proof of infringement through photographs, the standard for willfulness, and the consequences of failing to move for judgment as a matter of law during trial.

Simplot sued McCain in 2016, alleging that the Twisted Potato infringed Simplot’s U.S. Patent No. D640,036, a design patent titled “Spiral Potato Piece.” McCain filed its own suit alleging that Simplot’s “Sidewinder” fry infringed McCain’s design patent, U.S. Patent No. D720,916, titled “Root Vegetable Product.” The jury found that the Twisted Potato infringed Simplot’s ‘036 Patent and that the infringement was willful, though it awarded Simplot zero dollars in damages. On McCain’s ‘916 Patent, the jury found no infringement by the Sidewinder and found the patent invalid.

Published on: May 8, 2024

Key Evidentiary Rulings in Acceleration Bay v. Activision

by Stan Gibson

In the ongoing patent infringement case between Acceleration Bay LLC and Activision Blizzard Inc., the district court recently issued an order resolving several important evidentiary disputes between the parties. This order provides guidance on the admissibility of various categories of evidence that will impact the damages case at the upcoming trial.

Here are the key takeaways:

Survey Evidence Allowed for Limited Purpose

The court permitted Acceleration Bay to use Activision’s own customer surveys for the limited purpose of showing that the allegedly infringing large multiplayer game modes in Call of Duty are of equal or greater importance to customers compared to the non-infringing small game modes. Nonetheless, the district court reiterated its exclusion of the plaintiff’s damages expert’s opinions apportioning royalties based primarily on this survey evidence, finding that while the surveys can demonstrate the significance of the accused modes, they cannot directly calculate the royalty damage amount.

Evidence of Foreign World of Warcraft Sales Permitted

The district court allowed Acceleration Bay to present evidence of Activision’s foreign sales revenues for the World of Warcraft game. The plaintiff’s theory is that the infringing U.S.-based server system supports foreign players in North and South America. The district court found that as long as Acceleration Bay provides evidence linking the foreign sales to the accused domestic server system, the foreign revenue numbers can be admitted, even if conditionally at first. Continue reading

Published on: April 13, 2023

Masimo v. Apple: District Court Excludes Lost Profits Damage Theory for Failure to Disclose

by Stan Gibson

In this patent infringement action, Apple moved to exclude Masimo’s damage theory on lost profits for failure to disclose during discovery. As explained by the district court, Masimo presented its lost profits theory based on the equation: “Lost profits = Apple Watch units sold x Masimo’s per-unit profit.” Masimo claimed that the equation breaks down and is supported as follows:

Apple Watch units sold from Q4 2018 to Q1 2023 (i.e., from the first sale of an Apple Watch to present), including Series 4-7
Masimo’s sensor module price of $100
Masimo’s gross profit margin (overall as a company) of 65% (or, alternatively, subtracting the cost to build each sensor module from the $100 price)

The district court analyzed whether each of these “building blocks” were adequately disclosed by Masimo.

With respect to the first building block, sold units of Apple Watches, the district court determined “that Plaintiffs did not disclose during fact or expert discovery (1) the subset of Apple Watch models and sales units on which they now intend to rely at trial; or (2) an explanation of why this subset of units properly informs lost profits.” Masimo’s reliance on Apple’s disclosure of total watches sold was insufficient because Massimo was not contending that all watches were part of the lost profits theory. Continue reading

Published on: October 17, 2022

District Court Permits Damage Expert to Testify Regarding Comparable Licenses That Contained “Built-In Apportionment” of Royalties

by Stan Gibson

In this patent infringement action, Ravgen asserted that Labcorp infringes claims of its 727,720 and 7,332,277 patents (the “’720” and “’277” patents through four cell-free DNA-based tests, each of which are noninvasive prenatal tests (“NIPT”)) and Resolution ctDx Lung Assay (“ctDx”) (a liquid biopsy test for cancer). Labcorp moved to exclude certain opinions of Ravgen’s damages expert.

As explained by the district court, in support of its claims against Labcorp, Mr. Meyer, Ravgen’s damages expert, provided a reasonable royalty opinion based on a Georgia-Pacific hypothetical negotiation analysis. In that analysis, Mr. Meyer relied on several agreements to inform the appropriate royalty, including five Ravgen Agreements that granted licenses to the asserted patents, which each cover NIPT and/or liquid biopsy tests. He also relied on three Sequenom Agreements (the “Sequenom-Quest,” “Sequenom-Mayo,” and “Sequenom-ISIS” Agreements) involving technology comparable to the asserted patents. Based on these Agreements and the apportionment built into the royalties contained in those agreements, Mr. Meyer determined a per-unit royalty for the hypothetical license to Labcorp.

In its motion, Labcorp asserted that the following opinions of Mr. Meyer should be excluded: (1) his calculation of reasonable royalty (up to $290 million) for failure to undertake the legal requirement of apportionment; and (2) his use of and any reference to the Ravgen Agreements in forming his opinions, because they lack sufficient comparability to the hypothetical license. Labcorp asserted that Mr. Meyer effectively invokes the entire market value rule (“EMVR”), as he calculated his reasonable royalty using the revenues attributable to the entire market value of the accused tests and he did so by using the ASP (average sales price) as the royalty base for the accused tests. Continue reading

Published on: May 5, 2020

District Court Vacates $45 Million Damage Award But Holds That Plaintiff Did Not Waive Right to Damages Award Due to Invalid Damages Theory Put Forward at Trial

by Stan Gibson

After the jury concluded that LG Electronics had willfully infringed a patent held by Mondis Technology and awarded $45 million in damages, the district court let stand the willful infringement determination but vacated the damage award of $45 million. The district court concluded that the damage award was based on an invalid theory because it was not properly apportioned under relevant Federal Circuit law. LG Electronics then asserted that Mondis had waived the right to a damage award based on its reliance of an invalid damage theory under Promega Corp. v. Life Techs. Corp., 875 F.3d 651, 666 (Fed. Cir. 2017).

In Promega, the Federal Circuit held:

But, as explained above, a patent owner may waive its right to a damages award when it deliberately abandons valid theories of recovery in a singular pursuit of an ultimately invalid damages theory. When a plaintiff deliberately takes a risk by relying at trial exclusively on a damages theory that ultimately proves unsuccessful, and, when challenged, does not dispute that it failed to present an alternative case for damages, a district court does not abuse its discretion by declining to give that plaintiff multiple chances to correct deficiencies in its arguments or the record.

Published on: March 27, 2018

Ericsson v. TCL: District Court Tosses Out Damage Theory Based on Improper Use of Survey

by Stan Gibson

During a jury trial, Ericsson asserted that TCL infringed claims 1 and 5 of U.S. Patent No. 7,149,510 (the “‘510 Patent”) by selling phones and devices that included the Google Android operating system. The jury found that TCL infringed claims 1 and 5, that TCL’s infringement was willful, and awarded $75 million as a lump sum royalty. TCL moved for a new trial on infringement and damages. The district court decided the motion for new trial on damages should be granted for the reasons explained below.

The damage theory Ericsson presented at trial was based on the opinions of Dr. William Wecker and Mr. Robert Mills. Dr. Wecker provided analysis of a consumer survey that, according to Ericsson, approximated the apportioned value of the patented invention. Mr. Mills in turn used Dr. Wecker’s survey results to estimate a per phone royalty rate the parties would have agreed to at the hypothetical negotiation. Dr. Wecker’s survey was designed to determine how many consumers that had purchased an Android-based smartphone during the relevant time would have decided against purchasing the phone if the phone lacked the accused security and permissions feature, i.e.: the ability to control whether third-party applications can access native functionality on the phone. Mr. Mills used Dr. Wecker’s survey results to determine a per phone royalty rate. According to Mr. Mills, Dr. Wecker’s survey results indicated that about 28% of consumers who purchased accused TCL phones would not have made those purchases if the phone lacked the allegedly infringing feature.

The district court concluded that there were at least two independent reasons why a new trial on damages was necessary. “The first and most important is that the manner in which Mr. Mills used Dr. Wecker’s survey results is not based on sufficient facts or data, not the product of reliable principles, and not reliably based on the facts of the case. See Fed. R. Evid. 702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579(1993). Namely, Mr. Mills directly translated the roughly 28% of survey respondents who allegedly would not have bought a TCL phone without the infringing feature to TCL’s profit in an effort to determine the potential “at-risk” profit. This step in Mr. Mills’ analysis was unreliable.”

Published on: February 7, 2017

District Court Excludes Damage Expert for Failure to Apportion But Gives Expert One More Opportunity to Supplement Report

by Stan Gibson

In this patent infringement action, Plaid sought to exclude the entirety of the plaintiff’s damage expert’s, Robinson’s, reasonable royalty analysis as based on an apportionment “plucked out of thin air.” Yodlee opposed the motion and asserted that its apportionment methodology was justified by the facts of the case.

The district court began its analysis by noting that “[Ii infringement is shown, the jury will need to ‘apportion the defendant’s profits and the patentee’s damages between the patented feature and the unpatented features using reliable and tangible evidence.’ Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201, 1226 (Fed. Cir. 2014) (internal quotation marks omitted). ‘The essential requirement is that the ultimate reasonable royalty award must be based on the incremental value that the patented invention adds to the end product.’ Id.”
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Published on: December 13, 2016

District Court Orders Plaintiff to Supplement Damage Information Provided in Federal Rule 26 Initial Disclosures Where Plaintiff Failed to Compute an Actual Damage Number

by Stan Gibson

In this discovery dispute in a patent infringement action, Frontgate contended that Balsam Brands, Inc. (“Balsam”) failed to adequately respond to an interrogatory seeking information about Balsam’s damages. As explained by the district court, Balsam’s response stated that it: (1) “intends to seek lost profits on the 1,662 Flip Trees that it did not sell during the 2015 Christmas season”; and (2) “intends to seek a reasonable royalty on all Inversion Trees sold by Defendants for which lost profits are not available.” Balsam further responded that “historical data on Balsam’s cost, sales, inventory, and pricing” was included in materials produced.
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Published on: September 20, 2016

District Court Excludes Damage Expert’s Opinion Based On Faulty Royalty Calculation

by Stan Gibson

In this patent infringement action between Finjan and Sophos, the district court had previously granted a motion to exclude Finjan’s damage expert. The district court explained that the expert’s, Layne-Farrar, “method of applying a royalty rate to an apportioned base for each patent and adding the resulting royalties was not reliable because under her apportionment method she had attributed the full value of certain features of Sophos’s products to multiple patents and so had counted the value of these features multiple times.”

The district court concluded that this methodology “functioned to inflate Layne-Farrar’s royalty base and her final damages calculation.” Nonetheless, the district court permitted the expert to submit a supplemental report. Sophos then moved to exclude the supplemental report as well.
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