I/P Engine, Inc. v. AOL, Inc. et al

Filing 791

NOTICE by I/P Engine, Inc. of Calculation of Prejudgment Interest (Attachments: # 1 Exhibit A)(Sherwood, Jeffrey)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
__________________________________________
)
I/P ENGINE, INC.,
)
)
Plaintiff,
)
v.
)
Civ. Action No. 2:11-cv-512
)
AOL, INC. et al.,
)
)
Defendants.
)
__________________________________________)

PLAINTIFF I/P ENGINE INC.’S NOTICE OF CALCULATION OF
PREJUDGMENT INTEREST
As a prevailing plaintiff in a patent infringement action, I/P Engine, Inc. (“I/P Engine”) is
presumptively entitled to prejudgment interest on the damages awarded. As the Supreme Court
stated in General Motors Corp. v. Devex Corp., 461 U.S. 648, 657 (1983), “prejudgment interest
should ordinarily be awarded absent some justification for withholding such an award.” No
justification exists for departing from the principle that prejudgment interest “is the rule, not the
exception” and “serves to make the patent owner whole, for damages properly include the
foregone use of money of which the patentee was wrongly deprived.” Sensonics, Inc. v.
Aerosonic Corp., 81 F.3d 1566, 1574 (Fed. Cir. 1996); see alsoEcolab, Inc. v. FMC Corp., 569
F.3d 1335, 1353 (Fed. Cir. 2009) (“[w]hen a patentee asserts a patent claim that is held to be
valid and infringed, prejudgment interest is generally awarded.”). Only with the award of
prejudgment interest will I/P Engine be fully compensated for Defendants’ infringement of I/P
Engine’s patents.
Consistent with this Court’s decision in the ActiveVideo Networks, Inc. v. Verizon
Comms., Inc. 2011 WL 4899922, *6-7 (E.D.VA. 2011), I/P Engine requests that the Court award

prejudgment interest at the prime rate compounded quarterly from September 15, 2011 until the
date judgment is entered. I/P Engine’s calculation of prejudgment interest based upon the total
compensatory damages award set forth in Verdict Form, III.C. is $643,084. See Exhibit A,
attached hereto, for I/P Engine’s prejudgment-interest calculations.1

Dated: November 7, 2012

By: /s/ Jeffrey K. Sherwood

Donald C. Schultz (Virginia Bar No. 30531)
W. Ryan Snow (Virginia Bar No. 47423)
CRENSHAW, WARE & MARTIN PLC
150 West Main Street
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
Jeffrey K. Sherwood (Virginia Bar No. 19222)
Frank C. Cimino, Jr.
Kenneth W. Brothers
Charles J. Monterio, Jr.
DICKSTEIN SHAPIRO LLP
1825 Eye Street, NW
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]
Dawn Rudenko Albert
DICKSTEIN SHAPIRO LLP
1633 Broadway
New York, New York 10019

Counsel for Plaintiff I/P Engine, Inc.

1

This calculation does not include any supplemental damages based upon an accounting of
Defendants’ pre-verdict infringing revenues from October 1, 2012 that were not covered by the
jury verdict. I/P Engine has requested but has not yet received that information from Defendants.
2

CERTIFICATE OF SERVICE
I hereby certify that on this 7th day of November, 2012, the foregoing, , was served via
the Court’s CM/ECF system on the following:
Stephen Edward Noona
Kaufman & Canoles, P.C.
150 W Main St
Suite 2100
Norfolk, VA 23510
[e-mail]
David Bilsker
David Perlson
Quinn Emanuel Urquhart & Sullivan LLP
50 California Street, 22nd Floor
San Francisco, CA 94111
[e-mail]
[e-mail]
Robert L. Burns
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
[e-mail]
Cortney S. Alexander
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
[e-mail]
/s/ Jeffrey K. Sherwood

3