A perfect storm of increasingly valuable intellectual property portfolios and societal acceptance of suits based on the infringement of intellectual property has led to a surge in intellectual property verdicts.
Verdicts in US intellectual property cases are growing and last year they exceeded $1.3 billion. One example is the $78.9 million jury verdict high-tech company Finisar won in a patent infringement case against The DirecTV Group Inc. The patent at issue in the case covered data transmission via satellite. And though Finsar never commercialized the technology they did offer licenses to DirecTV when it learned of the infringement. The case has been appealed, but fines and interest are adding up, and the judge enhanced the verdict by $25 million for willful infringement.
There are many reasons for the rise in the amount of verdicts in intellectual property litigation, chief among them the fact that more companies treat their intellectual property portfolios as assets. Another is the market size for high-tech products based on such intellectual property. Such markets can be global and involve annual sales in the millions. Couple this with the fact that companies’ increasingly elect to bring such cases to trial, and the availability of courtrooms fitted with high-tech equipment which facilitates the use of visual aids and animation.
According to Ernie Brooks, president of Brooks Kushman, an intellectual property firm, another factor in the rise of intellectual property verdicts is that litigation goes through cycles and today’s culture happens to be receptive to intellectual property litigation.
Although verdicts of more than $10 million are increasingly common, there are still plenty of verdicts below $3 million, and some are lower still. Indeed, the primary objective of many companies is simply to end the infringement as soon as possible after learning that one or more of their patents has been violated. Under these circumstances, the company files a patent infringement suit seeking an injunction and there will be relatively small damages.
Obviously, the nature of patents can make patent litigation extremely complex. The key, trial lawyers say, is to use plain language and to explain and illustrate the technology in such a way that it can be understood by the average person. For example, in Texas Instruments Inc.’s case against GlobespanVirata Inc., Texas Instruments’ litigators used visuals that depicted digital subscriber line (“DSL”) signals used for high-speed Internet service as cars and trucks passing each other in lanes. The Texas Instruments team believes these visuals helped win a $112 million verdict against GlobespanVirata.
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