Well, I tried to post links, or at least copy and paste and YMB is acting crazy, but here is point my anyway. If you search "Post-Verdict Royalty Rates Higher than Pre-Verdict", you will find many law articles on the topic. The Federal Circuit Opinions are evolving on the subject, but as they stand right now, the 3.5% that the jury used in it's verdict is only the starting point that Judge Jackson will use when imposing the future rate because Google is now a "willful infringer" after the verdict. Google may very well be staring at a 5-10% royalty rate moving forward if they do not settle. A small sampling of Federal Opinion : "Federal Circuit decision that there is a fundamental difference, however, between
a reasonable royalty for pre-verdict infringement and damages for post-verdict infringement. Prior to judgment ,liability for infringement, as well as the validity of the patent, is uncertain, and damages are determined in the context of that uncertainty. Once a judgment of validity and infringement has been entered, however, the calculus is markedly different because different economic factors are involved."
Brian: regarding Edva's responce to your thread on Google customers paying 10% more. If your above research posted on Friday is correct regarding "infringement" verdict becoming "willful infringement" post verdict, and Edva's respectful counter that Google has an Indemnity policy regarding claims to its customers, then one could reason that such an indemnity policy claim could be denied by an insurance carrier if "willful" is found, on the grounds of Fraud. imo
Certainly not a given that the rate will be higher than 3.5%, but the possibility is real. An excerpt from an article by Fish & Richardson Intellectual Property:
"Most courts have also set the post-verdict ongoing royalty higher than the pre-verdict rate, including the Paice remand, Creative Internet, Cummins-Allison, and Boston-Scientific. This seems correct. The ongoing royalty compensates the patentee for surrendering its right to file a new lawsuit to address the continued infringement. In that lawsuit, collateral estoppel would prevent the defendant from raising any defenses on the merits. And a willfulness finding would be almost certain because the defendant could not believe in good faith that its actions were permissible, which would expose it to the risk of treble damages and attorney fees. A defendant would surely pay much more to avoid such risk than it would have paid pre-verdict".
Excellent points and lots of supporting posts on this thread. I can't help but notice that the #$%$ bashers are all but AWOL on this topic, still waiting to see if they can present any facts to counter brian48393 and casp321...doubt it...
Sentiment: Strong Buy