Isolating The DNA Of Patent Damages

Law360, New York (July 1, 2013, 12:17 PM EDT) -- Reprising his now-frequent role as a trial judge in patent settings, Judge Richard Posner of the Seventh Circuit Court of Appeals recently issued yet another patent damages opinion of note.

In an order dated May 27, 2013, in the Northern District of Illinois patent infringement case Promega v. Applied Biosystems et al., Judge Posner cut the heart out of the plaintiff’s (Life Tech, which was sued by Promega for a declaratory judgment of noninfringement) proposed damages testimony, concluding that the expert “cannot be permitted to testify to a reasonable royalty rate.” (Order at 4)

As discussed below, despite trying to justify...

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