2) A few years ago, NTP sued RIM. RIM makes Blackberry handheld email devices and operates a system which connects the devices. NTP held a patent which it claim Blackberry infringed. NTP sought damages and an injunction barring RIM from continuing to use its patents. The injunction would render Blackberries unable to send or receive email, unless RIM could redesign the system to avoid infringement. Blackberry argued that the patent was invalid, but a district court judge indicated that he was likely to find that the patent was valid and infringed. In 2006, before the Ebay case was decided, the parties settled. RIM paid NTP $612.5 million dollars for the right to use NTP technology.
How do you think settlement negotiations might have been different, if they had taken place after the Ebay case had been decided?
3) Damages in intellectual property lawsuits are usually measured by the plaintiff’s lost profits. That is, the court estimates what the plaintiff’s profits would have been, had there been no infringement. The defendant must pay the difference between that estimate and actual profits. Suppose A has a patent on telephones, which B infringed. As a result of infringement, A sold 1000 telephones, making $1 profit on each telephone. As a result of the infringement, B also sold 1000 telephones, also making $1 profit on each telephone. If B had not infringed, it would not have sold any telephones. If A prevailed in a patent infringement lawsuit against B, how would you calculate the damages?