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All Questions in Litigation >> Royalty and Prosecution Laches

Royalty and Prosecution Laches

Posted by Anonymous . updated on 2/26/2009
[ROYALTY]
I remember I saw the the discussions regarding "royalty" somewhere, but the I find it now and the on-going talk deviates quite substantially from the "royalty". Anyway, I am re-asking this again here, and hope you guys won't be annoyed.

Q1: No eary rule for determine the royalty rate either during the negotiation or in front of the court. But is there any data/statistic showing the roaylty rate adjudicated by the court and the final damage (original plus enhanced awarded?

Q2: During the litigation, WHEN will P claim the AMOUNT for damage? Not in the pleading stage, but what stage and when? D is permitted to argue the rate with its one expert, isn't it? Infringement or not is a issue for fact finder, while the judge decides the rate. Right? Court can also determine whether there is willfulness and exceptional circumstances. Right?

---------------------------
[PROSECUTION LACHES]
An US patent filed in 1993 claiming a Japan priority. There have been several continuation applications since then, and many of them were granted in 1998, 1999, 2001 with the very first US application abandoned. There are, believed, two or three other continuations. However, the patentee only takes the 2001-issued patent as the basis for licensing negotiation.

Q1: Why not asserting the patents issued in 1998 and 1999? I have checked that the background, enablements, and the BASIC claims are substantially similar.

Q2: 1993 (the first application) till now 2005, 12 years have passed. It's quite unfair for the patentee to claim the same priority. Is prosecution laches good as a defense? What else is available?

Q3: The patentee can simply buy the allegedly infringing products from the market and try to construe the claims in a way to cover the products by way of patent continuation. Any way to protect the allegedly infringer?

Q4: If the issued patent is related to a standard adopted by a standard setting orgnization, what can the members of that organization do?

Q5: There is a grey area between the monopoly granted by patent law and the anti-monopoly concern prescribed by antitrust law. When can antitrust law specifically take a role in a patent litigation as a SWORD by D (infringer)?

Thanks.
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