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<i>Lucent v. Gateway</i>: A Closer Look at Patent Damages

By Cedric G. DeLaCruz

In a move signaling a heightening of evidentiary scrutiny for patent infringement damage calculations, the Court of Appeals for the Federal Circuit, in Lucent Techs. v. Gateway, Inc., 2009 U.S. App. Lexis 20325 (Fed. Cir. Sept. 11, 2009), vacated and remanded an almost $358 million award to Lucent based on Microsoft's infringement of U.S. Patent 4,763,356, entitled “Touch screen form entry system” (hereinafter the “'356 patent”). The Federal Circuit affirmed the lower court's validity and infringement ruling, but sent the damage award back due to lack of sufficient evidentiary support for several Georgia-Pacific factors (see Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970)) and the entire market value rule.

The '356 Patent

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