The following is excerpted from a November 4, 2011 article by Stanley M. Gibson of Jeffer Mangels Butler & Mitchell LLP published by Mondaq:
ActiveVideo filed a patent infringement action against several Verizon entities asserting that Verizon infringed certain of ActiveVideo's patents. After a three week jury trial, the jury found that Verizon infringed asserted claims of four of the patents and awarded ActiveVideo $115,000,000 in damages. After the verdict, ActiveVideo sought an award of prejudgment infringement, post-judgment interest and post-discovery damages for the continuing infringement. Verizon opposed the motion.
The district court disagreed with Verizon's position. It found that there was no waiver of supplemental damages because courts have held that the failure to include a separate request for "supplemental" damages does not result in waiver because such damages are a component of any request for compensatory damages. The district court found that ActiveVideo had requested compensatory damages in its first amended complaint and in the final pretrial order. "Thus, the Court finds that ActiveVideo has not waived its request for supplemental damages in this case."
The district court also noted that "courts have found that such supplemental damages may take into account pre-verdict infringing sales that were not covered by the jury verdict due to deficiencies in the discovery production." Therefore, the district court found that an award of supplemental damages was appropriate.
Read the full article here.