The Structure Of Ongoing Royalties In Patent Litigation

Law360, New York (October 11, 2011, 12:39 PM EDT) -- Since eBay Inc. v. MercExchange LLC, 547 U.S. 388 (2006), courts have grappled with the proper approach to post-verdict royalties when a permanent injunction is denied, recognizing that the analysis of ongoing royalties is not necessarily identical to that of reasonable royalties for damages calculations. For example, in one of the seminal cases on ongoing royalties, Paice LLC v. Toyota Motor Corp., 504 F.3d at 1317, Judge Randall Rader wrote:

"[P]re-suit and post-judgment acts of infringement are distinct, and may warrant different royalty rates given the...
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