Debate Continues Over Paid in Full Patent Awards

The evolving damages issues in patent cases continue to challenge courts and counsel. Perhaps the most unsettled of these issues pertains to damages for future infringement. Now that injunctions are no longer routinely granted, courts wrestle with how to compensate a patent holder for its right to exclude when the remedy of exclusion is unavailable. In light of Lucent Techs. Inc. v. Gateway Inc., 580 F.3d 1301, 1324-26 (Fed. Cir. 2009) (en banc), defendants increasingly have argued for a new form of damages—the paid-in-full, lump-sum award—that ostensibly moots issues over future infringement. Although some district courts have approved of this approach, the U.S. Court of Appeals for the Federal Circuit has not specifically addressed this issue. But as set forth below, it likely is only a matter of time before the court does.