Thursday, March 10, 2011

Dmitry Karshtedt: Samsung-Stanford Symposium on Patent Remedies

This is a guest post by Dmitry Karshtedt, a 3L at Stanford with a Ph.D. in chemistry. Karshtedt is the Stanford Law Review Senior Symposium Editor, and his legal scholarship is available on SSRN.

The inaugural Samsung-Stanford Symposium on Patent Remedies took place on February 18, 2011, at Stanford Law School. The panels featured both law professors and students who won the Samsung-Stanford prizes on the basis of their proposals. Links to videos of the panels and PDFs of the papers are included below.

The first panel, moderated by Professor Robin Feldman of U.C. Hastings College of the Law, was focused on injunctions. Janet Freilich, a 2L from Harvard, kicked off the discussion and presented a nuisance framework that judges could use to determine when to issue injunctions, supplementing the four-part test endorsed in eBay v. MercExchange. Professor Christopher Cotropia, from the University of Richmond, then presented an empirical paper that showed that the Federal Circuit’s Kyocera case did not have the expected effect of reducing the number of filings by patent owners to prevent the importation of infringing goods through the International Trade Commission. Professor Ted Sichelman, from the University of San Diego, argued that patent remedies must be based on harm to the public caused by diminished incentives to innovate due to infringement, rather than on injury to individual patent owners. Professor Peter Lee of U.C. Davis then proposed a rule, based on the law of accession in the real property context, holding that infringement suits against owners of improvement patents should result in damages rather than injunctions. Finally, Professor John Golden of University of Texas discussed the compliance of patent injunctions with the Federal Rules of Civil Procedure.

The second panel, moderated by Brian Love, a teaching fellow at Stanford Law, focused on patentee overcompensation and apportionment. In the first paper, Professor Amy Landers of McGeorge demonstrated that the history of the Patent Act supported apportionment based on the novel contribution of the patentee over the prior art. Professor Bernard Chao of the University of Denver then argued that more reasonable damage awards will be reached if courts, as they may, allow accused infringement to implead other infringers for contribution. Using the example of the iPhone, 3L Ravi Mohan of Santa Clara argued that the use of apportionment is unavoidable for complex technologies. Finally, Dmitry Karshtedt, a 3L at Stanford, highlighted a panel split in the Federal Circuit involving differing treatment of proven acts of direct infringement in figuring indirect infringement damages.

The third panel, moderated by Professor Colleen Chien of Santa Clara, showcased empirical papers on patent damages. Damon Andrews, a 3L at the University of Iowa, argued that the goal of much of patent litigation is to extract settlements from defendants. Professor Michael Mazzeo of Northwestern University, in a paper co-authored by Jonathan Hillel of Skadden Arps and Samantha Zyontz of George Mason University School of Law, showed that patent damages are not as extravagant as commonly perceived. Rhonda Sadler, a 3L at Mercer Law School, suggested approaches to simplifying jury instructions based on evidence of lack of understanding of current jury charges in patent cases. Professor Christopher Seaman of Chicago-Kent College of Law, completed the panel by demonstrating the effects of opinions of counsel on cases dealing with various issues in patent law such as willful infringement.

The fourth and final panel dealt with structured calculation of reasonable royalties, and was moderated by the Honorable Ronald Whyte of the Northern District of California. Professor Thomas Cotter of the University of Minnesota discussed four principles that should guide courts in calculating reasonable royalties—faithfulness to substantive law, focus on compensation sufficient to make the patentee whole, increased damages only when this is needed for optimal deterrence, and basis of damages on licenses that parties would have actually entered into but for the infringement. The second paper was given Kanav Hasija, a Master in Intellectual Property at the University of New Hampshire School of Law and co-authored by Paul Tanpitukpongse, a 3L at UNH, and discussed a game theory approach to calculating reasonable royalties. Stanford LLMs Tony Lai and Samuel Windley co-authored the third paper, presented by Samuel, which involves courts encouraging patent litigants to negotiate actual royalty agreements and using such negotiations as the basis for reasonable royalties. The conference ended with Stanford’s Mark Lemley, who explained how courts should approach the issue of ongoing royalties in cases where injunctions are not granted and the losing defendant continues to infringe.

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