2004), our precedent does not require sales to have been lost in any particular way. While “the patentee needs to have been selling some item, the profits of which have been lost due to infringing sales, in order to claim damages consisting of lost profits,” Poly-America, L.P. The jury was entitled to find that had Kaz’s thermometers not been on the market, CVS would have chosen Exergen’s competing product to be the branded product. Trial testimony established that CVS offers its own generic products alongside a single branded product. The jury’s lost profits award with respect to CVS, the only retailer disputed on appeal, is also supported by substantial evidence. The jury was entitled to credit Exergen’s evidence that Kaz would have been highly motivated to pay a premium to enter the market. Kaz has not presented any evidence that the jury’s reasonable royalty would not have been feasible from a business perspective-indeed, Kaz would have still made 29% of its projected per-unit profit. The jury was not required to give more weight to Kaz’s license, particularly in light of mitigating testimony that the agreement was for a different type of thermometer “of unknown appeal,” was based on patent applications, and was not between competitors. He further testified that Kaz would have been incentivized to “pay a slightly higher royalty” because there were nine years left on the patents, which would have been a long time to sit out of a growing market. He testified that Exergen had no licenses with respect to the patents-in-suit, and would have needed to be “highly incentivized” to license the patents for a technology with “advantages that other products didn’t have, namely, the noninvasive, the gentle nature of the product.” J.A. For instance, Exergen’s expert explained that the parties were “fierce competitors” at the time of the hypothetical negotiation, and Exergen would have known that if it licensed the patents to Kaz, it would have lost sales. 1970), explaining why each relevant factor weighed in favor of a high royalty rate. Exergen’s damages expert went through each of the factors in Georgia-Pacific Corp. There was substantial evidence presented at trial which supports the jury’s conclusion that in a hypothetical negotiation, Kaz would have been willing to pay such a price to enter the market. While a royalty that would have given Exergen 71% of Kaz’s projected net profit is certainly steep, we do not review such fact findings de novo. What follows relates to these parts of the opinion. For that reason, the court also vacates the damages award and remands for reconsideration, although it concludes that the actual damages awarded were supported by substantial evidence, and that there was no error in the district court's finding of no willfulness. (Most of Judge Moore's opinion, as well as Judge Stoll's dissent, focuses on the patent eligibility question, and is probably the most significant aspect of the case.) The jury then found the claims infringed, and on this issue the Federal Circuit affirms in part and reverses in part, holding that only one of the two patents in suit was infringed. Exergen sued Kaz for infringement, and the district court held that the claims at issue to be patent-eligible. (I'm a little surprised it's a nonprecedential opinion, because it covers some important ground on a number of topics.) The patents in suit relate to thermometers that can read a person's temperature by being swiped across the forehead. Kaz USA, Inc., a nonprecedential opinion authored by Judge Moore and handed down last Thursday.
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