Today, the U.S. Supreme Court issued an order list denying a petition for writ of certiorari filed by patent owner EcoFactor to challenge this May's en banc ruling from the U.S. Court of Appeals for the Federal Circuit (CAFC) granting a new damages trial in EcoFactor's infringement case against Google. In dismissing EcoFactor's cert petition, the Supreme Court avoided ruling on whether the Federal Circuit has created a heightened Daubert standard for expert testimony on patent infringement damages
excluded Rex's damages expert Douglas Kidder from testifying about the key comparable license in the case-a $10 million settlement agreement between Rex and Covidien that covered not only the '650 patent at issue, but also a related patent that had been the subject of a lawsuit (the '892 patent), eight other U.S. patents, seven U.S. patent applications, and nineteen foreign patents or applications. The district court found that Kidder had failed to adequately apportion the license payment among all these patents, rendering his methodology unreliable.
If you look closely enough, you'll find patent numbers on most of the physical products around you. Much like their copyright and trademark cousins, these designations are far from cosmetic. Instead, they serve a statutory requirement to provide public notice about your protected intellectual property. In the case of patent marking, not only does it reduce the risk of infringement because you are informing potential infringers of the patent's existence.
