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United States: Judge Posner Consolidates Multiple Defendants Sued In Separate Actions And Raises Questions Whether Plaintiffs, If Successful In Establishing Liability, Will Be Entitled To Non-Trivial Damages
As a preliminary matter, Judge Posner consolidated the six
patent cases that were filed by Brandeis University against various
defendants, finding that they involve a number of common issues of
law and that judicial efficiency would be maximized by
consolidation. "These six cases are hereby consolidated under
1:12-cv-01508, pursuant to Fed. P. 42(a). The parties agree that
they involve a number of common issues of law, and I believe that
judicial efficiency will be maximized by consolidation. I will
consider in due course the defendants' request for separate
trials of issues, particularly damages, that vary significantly
across the six cases."
After consolidating the cases, Judge Posner expressed concern
regarding the damages that plaintiffs might be able to recover if
they succeeded in proving liability. "I am concerned whether
the plaintiffs if successful in establishing liability will be
entitled to nontrivial damages awards. Suppose the defendants
infringed the asserted patents but that none of the defendants
marketed its products as low in bad cholesterol (LDL) or high in
HDL, or as having a high ratio of HDL to LDL; and suppose further
that the defendants obtained no cost savings by infringing the
patents rather than using some non-infringing recipe and that
neither Brandeis nor its licensee GFA Brands lost any business as a
result of the infringement. On those assumptions, would the
plaintiffs have any claim for damages, whether compensatory or
punitive, or restitution? I would like the parties to address this
question in briefs filed simultaneously by close of business on
April 2."
* * * * * * * * * *
The question posed by Judge Posner is an interesting one: what
happens if there are likely no lost profits suffered by the
plaintiff and the defendants did not gain anything by using the
infringing method and non-infringing substitutes are available? The
Patent Act provides that the patent holder shall be entitled to
compensation of not less than a reasonable royalty, but what and
how should such a reasonable royalty be calculated in facts such as
these. We can expect that the plaintiff and the defendants will
present very different view points on this issue and any orders
from Judge Posner on this subject will be worth watching
closely.
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