Chicago IP Attorney & Lawyer : R. David Donoghue : Chicago IP Litigation Blog

Trading Techs. Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. Feb. 5, 2008) (Moran, Sen. J.).*

Judge Moran denied defendants’ Fed. R. Civ. P. 59 motion for a new trial of damages on the condition that plaintiff Trading Technologies (“TT”) accepted a remittitur of defendant eSpeed’s portion of the damages. After a trial, the jury returned a verdict for TT and awarded $3.5M in compensatory damages, split $2M against defendant Ecco and $1.5M against defendant eSpeed. At trial, TT’s damages model was based upon a proposed reasonable royalty of between $.15 and $.25 per trade and a total of approximately 18M to 23M trades for a damages range of about $3.5M to $4.6M. TT argued that the apportionment of damages was irrelevant because the total award was within the argued range and because eSpeed purchased Ecco and, therefore, would be paying the full amount. But the Court noted that Ecco’s award would be paid from an escrow account set up for because of TT’s patent claims when eSpeed purchased Ecco. Additionally, eSpeed’s $1.5M judgment was well beyond the highest award that could be supported by TT’s evidence. The evidence showed that during the relevant time, eSpeed completed approximately 2.1M trades. Even at $.25 per trade, TT’s highest proposed royalty, the possible damages were only $539,468. The Court, therefore, offered TT a remittitur of $539,468 or a new trial on damages.

The Court also awarded TT prejudgment interest set at the average prime rate for the period compounded monthly, because TT collected license fees monthly.

* Click here to read much more about this case in the Blog’s archives and click here for a copy of this opinion.

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Ball Aerosol & Specialty Container, Inc. v. Limited Brands, Inc., No. 05 C 3684, 2007 WL 2570351 (N.D. Ill. Sep. 4, 2007) (Der-Yeghiayan, J.).

Judge Der-Yeghiayan granted plaintiff Ball Aerosol & Specialty Container (“BASC”) summary judgment on the issue of patent damages, held that the case was exceptional and then doubled some of the damages and trebled the remainder. The Court previously construed the claims of BASC’s patent for a candle tin with a cover that can be used as a base and granted plaintiff summary judgment of infringement. In this opinion, the Court weighed the Georgia Pacific factors and held that they warranted a royalty rate of 20%. This rate represented an increase over the 17% rate BASC argued it would have granted in an arms-length negotiation to compensate BASC for the compulsory license. The Court then found that the case was exceptional because, among other reasons, defendants continued selling infringing product after the Court granted summary judgment of infringement. Based on the exceptional case holding, the Court doubled the damages from sales before the Court granted BASC summary judgment of infringement and trebled the damages for all sales after summary judgment.

Summary judgment of damages is a fairly rare occurrence. A quick review of the docket does not suggest that the parties waived their right to a jury. So, the facts in this case must have been very strong.

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