3been entered, the question for this Court is: “what amount of money would reasonablycompensate a patentee for giving up his right to exclude yet allow an ongoing willful infringer tomake a reasonable profit?”
, 609 F. Supp. 2d at 624 (citing factor 15 of
Georgia-Pacific Corp. v. U.S. Plywood Corp.
, 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970)).
Calculation of a royalty in these circumstances requires determination of two separate and distinct amounts: 1)the royalty base implicated by the infringement and 2) the royalty rate, or the percentage of thatbase “adequate to compensate” I/P Engine for the infringement.
See Finjan, Inc. v. SecureComputing Corp.
, 626 F.3d 1197, 1208 (Fed. Cir. 2010);
Cornell Univ. v. Hewlett–Packard Co.
,609 F. Supp. 2d 279, 286 (N.D.N.Y. 2009).The proper apportioned royalty base is the revenue associated with the use of the patentedtechnology, which segregates the revenue associated with the non-infringing portions of thetechnology.
Uniloc USA, Inc. v. Microsoft Corp.
, 632 F.3d 1292, 1318 (Fed. Cir. 2011) (statingthat “the patentee . . . must in every case give evidence tending to separate or apportion thedefendant's profits and the patentee's damages between the patented feature and the unpatentedfeatures . . .”) (quotations omitted) (citing
Garretson v. Clark
, 111 U.S. 120, 121 (1884)). Withrespect to the royalty rate, the Federal Circuit has set forth general principles that should guide adistrict court in setting a post-judgment ongoing-royalty rate. First, the determination of a post-verdict ongoing royalty rate is an equitable determination that is “committed to the sounddiscretion of the district court” and does not require a trial by jury.
, 517 F.3d at 1362,n.2;
, 504 F.3d at 1315-16. Second, district courts must take account of the fact that
By statute, a reasonable royalty represents the bare minimum an infringer would have to payfor use of an invention. 35 U.S.C. § 284 (“the court shall award the claimant damages adequateto compensate for the infringement but in no event less than a reasonable royalty”) (emphasisadded);
Rite-Hite Corp. v Kelley Co.
, 56 F.3d 1538, 1544 (Fed. Cir. 1995) (en banc) (stating thatthe purpose of the statute is to set “a floor below which damage awards may not fall”) (citationomitted).
Case 2:11-cv-00512-RAJ-TEM Document 823 Filed 12/18/12 Page 3 of 14 PageID# 21583