EcoFactor Responds: Defending the Federal Circuit’s Damages Ruling Allowing Qualitative Apportionment
Patent – Patently-O 2024-08-19
Summary:
by Dennis Crouch
This is my third post focusing on Google’s en banc challenge to ‘loose’ damages testimony. The patentee, EcoFactor, has now filed a responsive brief in the ongoing smart thermostat patent dispute which resulted in a $20 million jury verdict against Google. A 2-1 Federal Circuit panel affirmed the verdict and, as you might expect, EcoFactor’s en banc response defends the decision, arguing that the case presents a straightforward application of established precedent. At core, EcoFactor argues that Google and amici are seeking to impose new, rigid rules that go beyond existing Federal Circuit precedent. Although some say that hindsight is 20/20, anyone who has undergone a hypothetical damages analysis will understand that the process always involves some degree of guestimation and uncertainty — adding additional precision and calculation is unlikely to provide any true certainty or predictability.
- EcoFactor En Banc Response Brief
- Dennis Crouch, Defense Side Amici Support for Tighter Reins on Damages Expert Testimony, Patently-O (Aug. 2024).
- Dennis Crouch, Degrees of Disagreement: Google Petitions En Banc on Smart Thermostat Patent Damages, Patently-O (July 2024).
In the case, the majority, led by Judge Jimmy Reyna, upheld the district court’s admission of EcoFactor’s damages expert testimony and denied Google’s motion for a new trial on damages.