CEMCO Can't Get What It Wants, But Probably What It Needs

Earlier this month, I previewed a Federal Circuit oral argument in In re: California Expanded Metal Products Co., No. 2023-1140, where the district court vacated a jury award of a 12 percent royalty and denied a motion for an injunction, leaving the prevailing patentee without any relief. https://viewpoints.axinn.com/post/102j1g0/no-damages-no-injunction-and-no-opposition. The Federal Circuit has now issued a nonprecedential opinion affirming vacatur of the royalty award but finding error in the injunction denial.

The royalty vacatur presents the question of what evidence is sufficient to support a jury's award of a royalty rate. The District Court excluded evidence of prior licensing and settlement agreements, and the patentee, critically, did not challenge that exclusion on appeal. The only quantitative evidence the patentee could point to was its licensee's sales, the infringer's sales, and the infringer's profit margin (43 percent). The District Court concluded