Court Discretion

Judges have some discretion in awarding damages. They may apply that discretion in an effort to improve the reliability of a damages calculation.

A judge, however, may choose between reasonable alternative accounting methods for determining the amount of lost profits or may adopt in its discretion a reasonable way to determine the number of infringing units. Such subsidiary choices are left to the court's sound discretion under our precedent.

Smithkline Diagnostics v. Helena Laboratories, 926 F. 2d 1161, fn. 2 (Fed. Cir. 1991).

The court may choose a royalty figure that is not championed by either party in a case.

A district court is not limited to selecting one or the other of the specific royalty figures urged by counsel as reasonable. Radio Steel & Mfg. Co., 788 F.2d at 1556-57, 229 USPQ at 433 (approving of the district court's use of its "own independent judgment" in rejecting the parties reasonable royalty figures of 2% and 21%, and instead awarding a 10% reasonable royalty).

Smithkline Diagnostics v. Helena Laboratories, 926 F. 2d 1161, 1168 (Fed. Cir. 1991).

The court's discretion has limits. If a patentee proves validity and infringement, they are entitled to at least a reasonable royalty.

Dow does not appeal the district court's exclusion of its expert's reasonable royalty testimony. Rather Dow urges that reasonable royalty damages can be awarded even without such testimony; that there is a presumption of damages where infringement has been established; and that there is other evidence in the record, including the evidence supporting Perc's excluded opinions, that the district court must consider. We agree.

Dow Chemical Co. v. Mee Industries, Inc., 341 F. 3d 1370, 1381 (Fed. Cir. 2003).

The court cannot deny damages that a patentee proves. For example, a patentee is entitled to lost profits when it seeks and proves those lost profits are available.

More particularly, we reject an interpretation of our precedent holding that a judge has "discretion" to choose the "methodology" in determining an award to mean that the judge may choose between basing an award on "lost profits" damages or on a reasonable royalty. That is not choosing methodology. If a winning patentee seeks and proves lost profits, he is entitled to an award reflecting that amount.

Smithkline Diagnostics v. Helena Laboratories, 926 F. 2d 1161, fn. 2 (Fed. Cir. 1991).

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