ResQNet.com, Inc. v. Lansa, Inc.
Filing
335
OPINION: A damages award in the amount of three percent on a royalty base of $5,475,512 is entered, for a total of $164,265 prior to prejudgment interest. Submit judgment on notice. (Signed by Judge Robert W. Sweet on 12/5/2011) (ft)
ORIGINAL
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--- ---X
RESQNET.COM, INC.,
Plaintiff,
01 Civ. 3578
against
OPINION
LANSA, INC.,
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Defendant.
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A P PEA RAN C E S:
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At
for Plaintiff
SORIN ROYER COOPER LLP
Two Tower Center Boulevard, 11th
East Brunswick, N.J.
08816
By: Jeffrey Kaplan, Esq.
Attorneys for Defendant
ARENT FOX LLP
1675 Broadway
New York, N.Y. 10019
By: David Wynn, Esq.
1050 Connecticut Avenue, NW
Washington, D.C. 20036
By: James Hulme, Esq.
Janine Carlan, Esq.
Taniel Anderson, Esq.
oor
1--:-
~-,.--,-.-.,.--.-
••- -
Sweet, D.J.
Following
patent
the
infringement
Federal
action
Circuit's
vacating
forth
below,
an
this
in
Court's
this
original
redetermination of damages,
damages award and remanding
set
decision
award
of
$164,265
prior
to
as
prejudgment
interest is entered.
Prior Proceedings
The relevant facts and history of this proceeding are
set
forth
in
ResQNet.com,
detail
the
v.
Lansa,
(S . D . N . Y .
WL 43 763 6 7
Inc.
in
2 0 0 8)
Court's
Inc.,
No.
382 F. Supp. 2d 424
Of
relevance
owned by plaintiff
and
"Lansa") .
i
v.
Re
(RWS),
Lansa
2008
Inc. ,
Inc. v. Lansa
--~~------~----------------~
2005)
Inc. v.
i
(RWS), 2002 WL 310028011 (S.D.N.Y.
here,
in
these
Patent No.
ResQNet. com
Court
awarded
prior
6,295,075
Lansa,
damages
1
proceedings
this
(the "'075 patent"),
("Plaintiff"
infringed by defendant
The
3578
See
Familiarity with those facts is assumed.
Court ruled that U.S.
valid
Opinions.
Inc.
(S.D.N.Y.
Lansa, Inc., No. 01 Civ. 3578
Sept. 5, 2002).
01 Civ.
i
533 F. Supp. 2d 397 (S.D.N.Y. 2008)
Inc.,
ier
or
Inc.
"ResQNet"),
is
("Defendant"
or
$506,305
for
past
infringement
based
on
a
hypothetical
royalty
of
12.5%,
plus
prejudgment interest, and imposed a license at the same rate for
future
activity
covered
by
t
'075
patent.
The
Court
additionally assessed Rule 11 sanctions against ResQNet and its
counsel.
On February 5, 2010, the Federal Circuit
Court's
rul
on
the
issues
reversed the
imposition of
the
award,
damages
and
873
ResQNet
(Fed.
f
led
Cir.
validity
sanctions
remanded
reasonable royalty."
860,
of
.com
2010).
The
"to persuade
and
against
"for
infringement,
ResQNet,
a
vacated
culation
Inc. v. Lansa
Federal
firmed this
Ci
of
a
Inc., 594 F.3d
t
found
that
the court with legally sufficient
evidence regarding an appropriate reasonable royalty."
Id.
872.
expert
Specifically,
the
rcuit
found
that
ResQNet's
at
witness, Dr. David, and in turn this Court, impermissibly relied
on re-branding and re-bundling licenses that furnished finished
software products, source code, and other services.
A hearing on
held on June
7 and
8,
appropriate
2011
and
September 19, 2011.
2
final
reasonable
argument
Id.
royalty was
was
heard on
Discussion
I.
Legal Standard
Upon a showing of infringement, a patentee is entitled
to "damages adequate to compensate for the infringement, but in
ss than a reasonable royalty for the use made of the
no event
invention by the infringer,
fixed by the court./f
bears
35
together with interest and costs as
U.S.C.
the burden of proof
284.
§
to persuade
infringed party
the
court
with
legally
sufficient evidence regarding an appropriate reasonably royalty.
.,
See
Lucent Techs.
(Fed. Cir. 2009).
the
floor
Inc. v.
Gat
580 F.3d 1301,
"A reasonable royalty is, of course,
below which damages
shall
~__~~__~______~.~_______T_l_·r_e C~o~.,
___
not
fall.
1324
"'merely
Id.
(quoting
704 F.2d 1578, 1583
(Fed.Cir.
'II
1983)) .
The damages analysis must concentrate on compensation
for the economic harm caused by the infringement,
damages must be tied to sound economic proof.
Process
1350
(Fed.
v.
Cir.
American Maize-Prods.
1999);
Riles
Co.,
and proof of
See,
e.g.,
185
&
Grain
F.3d 1341,
Prod.
Co.,
-------------------~------------------------
298 F.3d 1302, 1312 (Fed. Cir. 2002).
3
The
attempts
would
to
have
more
ascertain
agreed
Inc.,
approach
the
had
royalty
they
69 F.3d 512,
of
rate
517
determining
to
negotiated
See, e.g., Unisplay,
infringement.
Co.,
common
an
which
damages
the
agreement
parties
prior
to
S.A. v. American Elec. Sign
(Fed.Cir. 1995).
"The hypothetical
negotiation tries, as best as possible,
to recreate the ex ante
licensing
describe
negotiation
scenario
and
to
the
. The hypothetical negotiation also assumes that
agreement .
the asserted patent claims are valid and infringed.
580
resulting
F.3d at
1324.
In calculating a
reasonable
Lucent,
/I
royalty under
this approach, courts rely on the comprehensive, if overlapping,
list
of
fifteen
United States
factors
det
Plywood Corp.,
led
318
in Georgia-PCicific
F.Supp.
1116,
Corp.
1120
v.
(S.D.N.Y.
1970), often termed the "Georgia-Pacific factors./I
The first
past
and present
factor requires considering
royal ties
received by the patentee
"for the
licensing of the patent in suit, proving or tending to prove an
established
royalty."
318
F.Supp.
at
1120.
"[T]his
factor
considers only past and present licenses to
the actual patent
and the actual claims in litigation."
. com,
869
(citing
calculation
Lucent,
may
not
580
F.3d
rely
at
on
-----"=----
1329).
licenses
4
Thus,
that
are
594 F. 3d at
the
damages
"radically
different from the hypothetical agreement under consideration."
Lucent, 580 F.3d at 1327-28.
In
addition,
assumed to have
the
hypothetical
occurred prior
to
litigation over
because the threat of suit may skew a
Hanson v. Alpine VCl11ey Ski Area,
(Fed.
Cir.
1983),
than
Inc.,
an
are
Inc.
see
1078 79
therefore
Similarly, a reasonable royalty can be
established
v.
be
the patent
718 F.2d 1075,
royalty
when
infringement artificially depressed past licenses.
Nickson Indus.
must
fee's negotiation,
and established royalty rates
evaluated in this light.
different
negotiation
Rol
Co.,
----------------~--~--------------~------
847 F.2d 795,
widespread
See,
e.g.,
798
(Fed.
Cir. 1988).
The second Georgia
~acific
factor considers "the rates
paid by the licensee for the use of other patents comparable to
the patents in suit."
Georgia Pacific 318 F.Supp. at 1120.
third factor weighs "[t]he nature and scope of the license,
The
as
exclusive or non-exclusive; or as restricted or non-restricted."
Id.
fourth Georgia-Pacific factor concerns the licensor's
policies and practices regarding the grant of
technology.
Id.
The
fifth
addresses
licenses to its
the
relationship between the licensor and the licensee.
commercial
Id.
The
sixth factor is "[t]he effect of selling the patented specialty
5
in
promoting
sales
of
other
products
of
the
license;
the
existing value of the invention to the licensor as a generator
of
sales
of
its
non-patented
derivative convoyed sales."
items;
and
the
extent
of
such
rd.
The seventh factor is the duration of the patent and
term
of
the
license.
profitability
of
The
rd.
the
product
eighth,
made
"[t]he
under
the
"[t] he utility and advantage of
over the
d modes or devices,
working out similar results."
patent;
rd.
commercial success; and its current popularity."
factor is
established
its
The ninth
the patent property
if any that has been used for
The tenth concerns the nature of
the patented invention as well as its commercial embodiments and
benefits.
rd.
The eleventh factor is the extent the
used invention and evidence of the value of that use.
ringer
rd.
The twelfth Georgia-Pacific factor is directed to the
customary
profit
inventions.
infringer's
rd.
rd.
profit
use
The
that
of
the
rteenth
should be
invention
is
the
credited
or
analogous
portion
to
the
of
the
invention.
The fourteenth factor considers the opinion of qualified
experts.
And the final factor is the amount that a licensor and
a licensee would have agreed upon if both had been reasonably
and voluntarily trying to reach an agreement.
6
rd.
Finally,
that
an
a reasonable royalty may also reflect "[t]he
infringer had
to
be
ordered by a
court
to pay
damages, rather than agreeing to a reasonable royalty."
Maxwell
v. J. Baker, Inc., 86 F.3d 1098, 1109-10 (Fed. Cir. 1996)
II. Reasonable Royalty
As detailed below,
7-8,
2011
hearing
the evidence presented at the June
establishes
that
the
proper
royalty
to
be
awarded is three percent and that such royalty should be appl
to
1 sales revenue, including maintenance fees,
from September
25, 2001 through June 24, 2008.
A.
Royalty Rate
Wi th respect
to the
royalty rate
that
should apply,
ResQNet offered the testimony and a second expert report of Dr.
Jesse
David,
a
senior
consultant
at
National
Economic
Research Associates who holds a Ph.D. in Economics from Stanford
University.
Brian Blonder
its
District
Lansa offered the expert
t
testimony and report of
a managing director of FTI Consulting and head of
of
Columbia
intellectual
evaluation practice.
7
property
damages
and
Each partyl s
report,
C
applying each of the Georg
(David
Report
Report)) .
are
expert provided a
of
Sept.
29,
(factors
thirteen) .
The
Court
two,
Def.
2010)lj
fourteen,
the
Likewise,
opinion
of
and
as
six
twelve,
seven,
agreement
address those factors
(Blonder
105
Ex.
fifteen factors,
three,
is
(PI. Ex.
-Pacific factors.
The parties agreed that of
neutral
factor
thorough analysis and
such
and
will
not
neither expert addressed
experts
I
or
found
the
final
factor fifteen to otherwise impact their previous conclusions.
Of the remaining factors,
the central one driving both
experts' conclusions was the first l which addresses the past and
present royal t
received by the patentee for the licensing of
the patent in suit.
Under the Circuit/s holding,
only straight
licenses of the patent at issue may be considered,
and not re
bundl ing
The
agree
licenses.
that
while
ResQNet.com,
there
are
594
three
F.3d
such
872.
licenses l
parties
the
only
relevant licenses to consider are the IBM and Zephyr licenses. 2
Of note,
the Zephyr agreement was reached to settle litigation l
while the IBM agreement was not.
This is David's second report, submitted subsequent to the appeal and
remand.
2
The terms of both licenses are subj ect to a protective order.
The
evidence submitted under protective order supports the reasonable royalty
calculated here.
1
8
David concluded that an appropriate reasonable royalty
rate
was
Report"»
eight
to
David
.
ten
(Pl.
percent.
based
this
Ex.
in
estimate
C
at
large
16
("David
part
on
royalties ResQNet received in these two straight licenses.
Ex . Cat
the
(Pl.
Of note, to reach this conclusion, David scaled
4 - 8) .
one of the rates, based on the language of that license as well
as
interviews with ResQNet employees who negotiated it.
Ex. S, T.)
Ex. C at 5i Tr. 91-98;
scaling
inappropriate
is
evidence.
This
is
because
incorrect.
Lansa contends that this
it
The
(Pl.
relies
license
on
extrinsic
question makes
clear that the given royalty rate applies to a larger body of
revenue than that which would have been produced by the licensed
patents
alone,
rate
the
leaving no
several
doubt
ResQNet
that
patents
the
appropriate
should be
royalty
scaled upward
from the license's lower rate on a greater body of revenue (Def.
Ex. 112, Def. Ex. 113 at 4, 6, 19, 25.)
In this regard, David's
estimate of the appropriate scaling is unrebutted.
below,
however,
David
failed
to
adequately
As discussed
apportion
for
the
mUltiple patents that license entailed.
Lansa's expert Blonder argues that based in part upon
these two straight licenses,
revenues
a royalty rate of one percent of
including maintenance,
or
9
1.
5%
of
revenues
excluding
maintenance,
is
In
reasonable.
support
of
this
conclusion,
Blonder divides the rate of each of the two straight 1 icenses,
(Def.
each of which covers a number of patents, by that number.
This approach assumes that the value of the
Ex . 1 0 5 at 13 15.)
'075 patent is equal to that of the other licensed components.
In Lucent,
because
the patented technology did not
accused product.
must
rcui t vacated a royalty rate
the Federal
in
every
apportion
the
drive
Lucent, 580 F.3d at 1336.
case
give
defendant's
evidence
profits
between the patented feature
the
for
the
"The patentee .
tending
and
demand
to
separate
patentee's
or
damages
and the unpatented features,
and
such evidence must be reliable and tangible, and not conjectural
or speculative."
U.S. 120, 121
Id.
(1884)).
at 1337
(quoting Garretson v.
Clark,
111
There must therefore be a downward rate
adjustment to account for and apportion the value of the
'075
patent within the context of both of the straight licenses in
evidence.
While David noted that the multiple patents included
in both straight licenses would have a "downward influence"
90)
he
did
not
adequately
apportion
the
straight
(Tr.
licenses.
onder simply divided their rates by the number of patents that
the
licenses
covered.
Both
approaches
10
must
be
rejected:
David's because it is counter to the holding of Lucent,
a
requires
onder's
downward
because
it
and
is
not
adjustment,
speculative
supported
which
by nothing
other
than
and
its
Blonder provides no reasoning as to why a straight
simplicity.
up division method accurately captures the proper royalty here.
As to factor four, David found that ResQNet's practice
of licensing the code for its software products or negotiate re
ler
agreements
for
those
straight patenting licenses,
influence
on
a
royalty
alone.
s
bundl
licenses
that
based
would
the
instead
of
entering
would tend to indicate and upward
rate
reasoning
products,
on
permit
Circuit
the
straight
reliance
rejected.
licenses
on
the
very
By
contrast,
Blonder soundly reasoned that because ResQNet has executed three
license
agreements
that
patented technology,
implicitly
include
this would operate a
right
to
the
'075
neutral or downward
influence on the royalty rate of the patent in suit.
Regarding
between
factor
licensor
and
five,
the
licensee,
commercial
David
Lansa and ResQNet were direct competitors,
have an upward influence on the
that
the companies are not
found
that
because
this would tend to
royalty rate.
direct
relationship
onder found
competitors because ResQNet
typically provides its program to other companies to resell or
11
bundle and,
produced at trial confirms that ResQNet
s
provide
As the evidence
as such t this factor was neutral.
program
to
other
did in fact
companies
to
resell
generally
or
bundle t
Blonderts view is the better one.
With
that
factors
regard to
eight
the
through
remaining
eleven
factors t
were
Blonder found
neut
David t
analyzing those factors together t found that they had an upward
David reached this conclusion in part by relying on
influence.
the
bundling
Circuit.
licenses
specifically
This reliance was improper.
rejected
by
the
Federal
David additionally cited
the significant revenues NewLook generated for Lansa t that one
of the straight licensees have paid ResQNet royalt
for nine
years rather than redesign its product, and that the '075 patent
has
been deemed valid and
factors.
though
infringing
as
upwardly
influencing
The Court is in agreement that these latter factors t
not
the
re-bundling
licenses t
are
mildly
upwardly
influencing.
Based
upon
a
consideration
of
all
of
the
Georgia
Pacific factors and in light of the Federal Circuitts opinion t a
three percent royalty rate is reasonable here.
B.
Royalty Base
12
parties additionally disagree as to what royalty
ly, the parties are
Specifi
base this rate should be applied.
at odds over whether the rate should apply to a base that does
or
does
not
include
maintenance
ResQNet
fees.
argues
that
maintenance fees were included in the Court's original
and
should
be
included
here,
inclusion of maintenance
while
both parties
royal ty
base
applied.
calculated
to
which
the
the
reasonable
royalty
as
rate
to
the
should
be
See ResQNet.com, 533 F. Supp. 2d at 418-19 ("Dr. David
Lansa's
revenue
dispute Dr. David's
from
NewLook
revenue
were
with
While Lansa does not
[Lansa President John]
testified that the actual figures
2007
sales
culations for NewLook maintenance revenue
for fiscal years 2005 and 2006
and
that
In the original trial in
presented evidence and argument
associated maintenance
2004,
asserts
s is inappropriate.
ResQNet has the better view.
2007,
Lansa
sion
below
Dr.
Siniscal
fiscal years 2002,
David's
estimates.")
2003,
In
the
course of those proceedings, Lansa did not object to the Court's
inclusion of maintenance revenue in the royalty base,
appropriate amount
only the
maintenance revenue to which the royalty
rate should be applied.
13
This Court's opinion of
February I,
2008
the proper royalty base included maintenance fees,
"Lansa shall provide Resqnet
with data
found
that
holding that
indicating
its Newlook
software sales and maintenance fee revenue since March 31,
2007
to which the reasonable royalty rate of 12.5% shall be applied."
Id. at 419 22.
Lansa did not challenge the scope of the royalty
base on appeal or question the inclusion of maintenance revenue
in the base in its briefing before that court.
The mandate rule bars relitiation not only of issues
actually decided on appeal, but of issues that "fall within the
scope
of
the
judgment
appealed
from
but
Amado v. Microsoft Corp., 517 F.3d 1353
the
Circuit
affirmed
this
infringement on all
es,
Court's
not
raised."
(Fed. Cir. 2008).
finding
with
Here,
regard
which included maintenance
to
As
such, the amount of the royalty base is therefore not now before
this court and maintenance fees must be included in the royalty
base.
See,
e. g.,
id.
(party
that
did
not
challenge
injunction in appeal could not challenge it on remand)
Pacemakers,
Inc. v. St.
(Fed. Cir. 2009)
trail
on
2009
Med.,
Inc.,
i
Cardiac
576 F.3d 1348,
1355 57
(invalidity could not be asserted on remand for
infringement
Power Lab.,
Jud~
stayed
WL
and
damages)
4912205
i
Meacham v.
(2d Cir.
14
2009)
Knolls
(issue
of
Atomic
waiver
could
not
be
addressed
on
remand
because
appeal
adjudicated
merits and waiver is antecedent to any analysis on the merits) .
Notwithstanding,
including maintenance
on
fees,
the
merits,
should be
all
sales
revenue,
included in the royalty
base.
Lansa
included
neither
fees.
in
of
maintenance
argues
the
the
royalty
base
straight
because,
patent
fees
in
licenses
With regard to the IBM license,
should
not
Defendant's
included
view,
maintenance
the parties point to an
advertisement that was taken from IBM's website in 2011,
provides:
"IBM
Passport
Advantage
be
and
Passport
which
Advantage
Express include renewable Software Maintenance that complements
your IBM software purchases.
with
receive
and
product
upgrade
Maintenance.
Whereas
purchase
license acquisition, you
support
separately
these
some
vendors
deal./I
(Def. Ex. 114.)
provide
IBM
increase their return on investment
features
believes
of
the
Software
option
its
to
customers
(ROI)
through this package
At the threshold,
little weight can be
given the 2011 advertisement language because it is not
ear to
what degree if any bearing it has on IBM's practices in 2001.
With respect to the advertisement, Lansa presented the testimony
of
Brandon
Kay,
who
testified
that
15
this
language
means
that
after
an
IBM
customer
purchases
a
license
for
a
software
application, they can purchase an additional license for product
upgrade and maintenance, rather than purchasing each separately.
(TR . 256 - 57 . )
In opposition, ResQNet provided the testimony of
Gad Janay, who testified that "basic maintenance and support was
included
the product price and upgrades.
ther you bought
upgrade protection or you had to pay for a new license when you
wanted to upgrade. tt
was
required
for
(Tr.
260 -61. )
product
Even if a
upgrades
separate license
and
license
that
includes
maintenance fees,
IBM was paying royalties to ResQNet on upgrade
licenses.
Ex .
(De f.
113
at
Thus,
25)
some
if
not
all
IBM
maintenance and upgrade services was royalty bearing.
In contrast,
maintenance fees.
In
addition,
" [a]
Zephyr
(Tr. 100-01, 112-15, Def. Ex. 52 at ZEP 212) .
Lansa
than
(perpetual)
introduced
Subscription
software license,
less
the Zephyr settlement expressly excluded
100
[and]
advertisement,
License
Plan
we
can
(Def. Ex.
offer
115.)
which
(SLP)
all maintenance.
unites,
option."
an
states
includes
the
If you require
a
traditional
Accordingly,
purchase
the value of
maintenance would have been included in the net sales price of
subscriptions, upon which Zephyr was paying royalties.
E
at
2.)
However,
the
Zephyr
license
does
not
(Pl. Ex.
charge
maintenance if it was sold separately in the event a
16
for
customer
did not choose the subscription plan,
100 units was ordered.
(Def. Ex.
that
115.)
is,
when less than
Thus, under the Zephyr
license it appears that some but not all maintenance was royalty
bearing.
Moreover,
one year of maintenance,
the purchase price of the software,
when NewLook is first ordered.
419.
charged at 15% of
is required to be purchased
ResQNet.com,
533 F. Supp. 2d at
Maintenance fees typically include delivering an updated
version of the same,
and here infringing,
software and as such
is a basis for customer demand for updates.
at 1
See Def. Ex.
115
(noting that customer gets new version of the software in
exchange for maintenance fees); Def. Ex. 114 at 2
maintenance
gives
customers
the
right
to
(stating that
"upgrade
at
your
leisure, conveniently downloading new software from the Web")}.
In sum,
properly
while
before
t
the
issue
Court,
were
maintenance
it
to
reach
fees
is not
the
issue,
maintenance fees should be included in the royalty base.
The parties are
base,
June
including
24,
(Blonder) ;
2008
in agreement
maintenance
is
fees,
$5,475,512.
from
(Def.
that
September
Ex.
Ex. C at Appendix 2B (David).)
17
the
105
at
total
25,
revenue
2001
to
Schedule
1A
C. Damages Are Awarded From September 25, 2001 to June 24, 2008
In addition to the appropriate royalty rate and base,
the parties disagree
should be
on the proper period over which damages
culated.
Lansa
argues
that
on
(Tr . 247 i De f.
redesigned.
June
24,
Ex . 108 at 2.)
these changes amount to an ef
NewLook
2008 1
Lansa alleges that
tive design around and as such
damages are only appropriate through June 241 2008.
to whether the allegedly new product infringes
party
generally
deserves
the
infringement question at a
Moazzam,
55
F.3d
1567
opportunity
(Fed.
Jan.
2009)
continuing
Comtronics
351 1
354
Inc.
I
v.
(N.D.N.Y.
in
order
analyzing
the
so
enter
Medtonic
(E.D.
Tex.
infringement
final
judgment)
Inc.,
i
from
Eagle
198 F.R.D.
(refusing to reach issue of
redesign
This conclusion is not altered by
Inc.
v.
EchoStar
(Fed. Cir. 2011), which addressed the 1
applicable
a
litigate
2 0 0 9 WL 1 7 5 6 9 6
rcuitls recent opinion in Tivo
Corp., 646 F.3d 869
standards
I
ingua Assocs.,
John Mez
2000)
to
-----
pre-verdict
to
when not properly presented) .
the Federal
•
(severing
claims
"the modifying
see
1995) i
Boston Scientific
1
I
With regard
new trial. I'
Vascular v.
23
was
redesign
to
in
and
the
procedural
context
18
of
requirements
contempt
for
proceedings
under
an
injunction
enforcing
patent
distinct from the unique context of a
rights.
remand
a
of damages as to the established infringement,
a
previously
issued
Additionally,
"new"
insufficient
NewLook infringes
the Court.
part
injunction,
the
\ 075
or
their
in
U.S.
("Because
tied
to
the
experts
context
the
Surgical
assessed
of
a
Corp.,
determination
the
infringement
infringement beginning at
evaluation of
chooses
is
to
patent
new
following the redesign in 2008.
v.
as
a
is
calculation
presented
whether
has
case
and in absence of
or
here.
not
the
been presented to
No technical expert has been offered.
appropriate
Corp.
that
evidence
That
what
Nor have the
damages
hypothetical
might
be
negotiation
See
435
of
F.3d
1356
reasonable
being
fferent
(Fed.
Cir.
royalty
redressed,
reasonable royalty damages./I).
Thus,
to pursue an infringement claim against
damages
a
time requires
2006)
is
separate
a
separate
if ResQNet
the redesigned
NewLook, it must do so in a separate action.
Damages
are
therefore
awarded
September 25, 2001 to June 24, 2008.
19
for
the
period
of
Conclusion
For the reasons set
forth above,
a damages award in
the amount of three percent on a royalty base of $5,475,512 is
entered,
for a total of $164,265 prior to prejudgment interest.
Submit judgment on notice.
It is so ordered.
I
New York, NY
December
:J-' ul'o
U.S.D.J.
'1011
20
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