Proven Infringement, Zero Recovery: Federal Circuit Once Again Cancels a Jury Verdict for the Patentee
Patent – Patently-O 2025-10-02
Summary:
In Rex Medical, L.P. v. Intuitive Surgical, Inc., No. 2024-1072 (Fed. Cir. Oct. 2, 2025), we find yet another decision involving the Federal Circuit overturning a jury's damages verdict. A jury had awarded $10 million for the infringement that was reduced to nominal damages of $1.
Key holdings:
- Nominal damages are proper - The Patent Act sets a "reasonable royalty" damages floor, but only if there is an evidentiary basis.
- Comparable-license apportionment is mandatory - when a comparable license covers more than simply the patent at issue, additional evidence must be presented to the jury to explain how to apportion the license value between the patent at issue in the case, and the other rights licensed.
Click to see images from the patents (kind of gross).
There is a lot to question about this decision, but ultimately I think it comes down to the statement that Intuitive's attorney made at oral arguments:
Melanie L. Bostwick: This is not in the record because Rex didn't do its job in present this evidence.
Background: Days before trial, District Judge Maryellen Noreika excluded Rex's damages expert Douglas Kidder from testifying about the key comparable license in the case—a $10 million settlement agreement between Rex and Covidien that covered not only the '650 patent at issue, but also a related patent that had been the subject of a lawsuit (the '892 patent), eight other U.S.