United States District Court, D. Delaware
LEONARD P. STARK, District Judge.
At Wilmington this 23rd day of January, 2015, having reviewed the parties' letters regarding jury instructions (D.I. 626, 627, 631),
IT IS HEREBY ORDERED that:
1. The Court disagrees with IV that an instruction on the entire market value rule cannot be read under these circumstances presented in this case. To the contrary, reading such an instruction is a proper exercise of the Court's discretion, as doing so will assist the jurors' understanding of the evidence on damages.
However, as stated in the Court's prior rulings on Symantec's Daubert motion and motion in limine, the Court finds Symantec's interpretation of the law governing the entire market value rule overly narrow. The Court will instruct the jury on entire market value in accordance with the Court's understanding of the law.
Accordingly, the Court will read the following cautionary jury instruction, at or about the time IV's damages expert first references IV's theory of damages as to the 610 patent, and again as part of the final instructions:
Intellectual Ventures is seeking damages for the 610 patent under what is called the "entire market value rule." Pursuant to this rule, a plaintiff may be awarded damages as a percentage of revenues or profits attributable to an entire multi-component product where the plaintiff establishes that it is the patented feature that drives the demand for the entire product. As you will hear evidence on revenues or profits from the entire market value of certain products, there are several things you must keep in mind when considering such evidence.
First, a reasonable royalty is typically made up of (1) a base and (2) a rate (or percentage) that is applied to that base. The ultimate combination of royalty base and royalty rate must reflect the value attributable to the infringing features of the product, and no more. IV bears the burden to establish the entire value of a product as a marketable article is properly attributable to the patented feature.
Second, in order for you to assess damages based on the entire market value of the product, IV must have established that the patented feature drove the demand for the entire product. If IV does not establish the patented feature drove the demand for the entire product, you must apportion the royalty down to a reasonable estimate of the value of the patented feature.
2. With respect to final jury instructions on general patent damages, the parties are largely in agreement as to the proper instructions. The Court finds IV's construction more straightforward and believes it will be slightly more helpful to the jury than Symantec's proposal.
The Court also adds a sentence.
Accordingly, the Court adopts the following final jury instruction on "Patent Damages Generally" (D.I. 604 at § 6.1):
If you find that Symantec is liable for infringement of one or more of the asserted claims, by making, using, selling, or offering for sale any of its accused products, and you find the asserted claims valid, you must determine the amount of money damages to be awarded to Intellectual Ventures, if any. The amount of damages must be adequate to compensate Intellectual Ventures for the infringement. If you do not find patent infringement liability by Symantec's accused products, or you find the asserted claims invalid, you will not consider patent damages at all.
Intellectual Ventures has the burden of proving damages by a preponderance of the evidence and is entitled only to damages that it has proven with "reasonable certainty." On the one hand, reasonable certainty does not require proof of damages with mathematical precision. Mere difficulty in ascertaining damages is not fatal to Intellectual Ventures. On the other hand, Intellectual Ventures is not entitled to speculative damages; that is, you should not award any amount for loss, which, although possible, is remote or left to ...