Errie--I’m not sure what JJ will do time-wise but here are a couple thoughts for what they’re worth re the more substantive questions.
These are off-the cuff things, and since I’ll ramble while watching a football game, you can tune out if you wish.
First, it’s interesting that I/P felt it’s necessary to file a separate motion for ongoing running royalty rates. I/P won the case, and part of the relief requested in the Complaint itself was for an award for reasonable royalties, compensatory damages, prejudgment interest, other damages, attorney fees and costs. Thus, even without a separate motion, I/P has already asked for this relief in its prayer for damages in the original Complaint. I suppose, though, now that the evidence is in and case concluded, I/P wants to emphasize what came in at trial. This may be SOP in patent infringement cases.
Second, I think I/P feels it proved willfulness in the past (even though not pled), as I/P is again asking for attorney fees---which would ordinarily not be granted unless as a part of the enhancement that is triggered under 35 U.S.C. § 285. Under that section attorney fees are allowed in “exceptional circumstances”; and “willfulness” in the infringement is sometimes considered the needed “exceptional circumstance”. I/P did specifically request damages under 35 U.S.C. 285, so they made a de facto willfulness plea.
So, as we know, I/P did almost everything necessary to plead enhanced damages but say the word “willfulness”, even though invited to do so by JJ, who was obviously confused why I/P refused to specifically allege willfulness. As I’ve pointed out before, though, in partial defense of the I/P attorneys, whom I’ve criticized on this point, the cases say you don’t actually have to use the word “willfulness” in order to invoke 35 U.S.C. 285---and I/P did ask for damages under 35 U.S.C. Therefore, there is at least a CHANCE that JJ could look past I/P’s specifically-pleaded language and find that, by citing the applicable Code section and asking for “other damages” and attorney fees, they had pled (“pled” or “pleaded” is allowed) willfulness.
.....BUT the problem that then arises is that, even if JJ were inclined to agree that willfulness was proven, the jury wasn’t asked about willfulness---and, if enhanced damages were awarded for willfulness Google would then have the argument on appeal that they didn’t defend against a plea of willfulness, particularly since I/P deliberately refused to plead it. So I/P may be out of luck on that count---but since JJ took away pre-lawsuit damages via laches anyway, some of the enhanced damages were lost in any event.
....And here I/P can’t be criticized for not PLEADING past damages---they did plead them---but they can be criticized for not addressing the laches affirmative defense against those damages by PROOF during trial. (But even if they did screw up on laches evidence I think JJ was unfair to I/P procedurally in the way he handled the whole laches question.
....I/P may get enhanced, or at least increased, damages since the filing of the case, though, since Google is still infringing after notice that they were infringing. (I/P can say, “You killed us because we supposedly give notice to Google after they infringed in the past, so why don’t you also take judicial notice that Google is willfully infringing now and deal with the running royalty accordingly ---giving us 5% or 7%---vs. only 3/5%?”
....So, I haven’t even commented on the $15.8 vs. $158 question or the merits of the laches question (I think I/P has a better chance of getting relief re laches on appeal than before JJ).
And on appeal---and there has to be an appeal absent a settlement---there are all sorts of possibilities, even including remands and new damage mini-trials.
I have to say that this is a VERY interesting case in many respects.
I’ve just rambled here while watching a football game. Hope I didn’t bore you to tears.
If I can, I’ll pick up some more Vrng shares on the morrow.
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