What Is Reasonable?

Several recent rulings from the U.S. Supreme Court have arguably tipped the scales toward alleged infringers involved in a patent battle. Specifically, the U.S. Supreme Court ('Supreme Court') in KSR International Co. v. Teleflex Inc., __ U.S. __, 127 S.Ct. 1727 (2007) modified the standard for obviousness thereby making it easier for alleged infringers to invalidate patents. In eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S.Ct. 1837 (2006), the Supreme Court modified the standard for determining the propriety of injunctions, making it more difficult for certain plaintiffs to obtain permanent injunctions against infringers. Finally, in MedImmune, Inc. v. Genentech, Inc., __ U.S. __, 127 S.Ct. 764 (2007), the Supreme Court made it easier for alleged infringers to argue there is a case or controversy, and thereby prospectively haul patent holders into court by filing a declaratory judgment action. However, a recent decision from the Court of Appeals for the Federal Circuit ('Federal Circuit') may help tip the scales back toward patent holders and thereby provide some additional leverage to patent holders in discussions with alleged infringers. In Amado v. Microsoft Corp., __ F.3d __, 2008 U.S. App. LEXIS 4065 (Fed. Cir. Feb. 26, 2008), the Federal Circuit indicated that after a verdict of infringement, the infringing party may be subject to a different (higher) royalty for post-verdict sales of the infringing product than was determined for past (i.e., pre-verdict) infringing sales.