EcoFactor v. Google: What Lies Ahead for Assessing Patent Damages? *

EcoFactor v. Google: What Lies Ahead for Assessing Patent Damages? *

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In a rare grant of en banc rehearing, the U.S. Court of Appeals for the Federal Circuit (CAFC) agreed to revisit a June 2024 precedential decision that affirmed a district court’s orders in favor of EcoFactor, Inc. against Google, whose appeal in part asked for a new trial on damages due to prejudicial error.

EcoFactor sued Google for infringement of its U.S. Patent No. 8,738,327 relating to smart thermostat technology. Google moved for summary judgment that certain claims of the patent were invalid as abstract under Section 101, but the district court denied the motion, and also denied Google’s Daubert motion to exclude the opinion of EcoFactor’s damages expert, Mr. Kennedy, whose testimony Google argued was “unreliable and therefore prejudicial,” according to the CAFC. On appeal, Google argued the district court erred in denying Google’s motion for a new trial on damages.

The CAFC’s order granting en banc rehearing limited the issues for briefing to addressing the district court’s “adherence to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in its allowance of testimony from Eco-Factor’s damages expert assigning a per-unit royalty rate to the three licenses in evidence in this case.” Oral arguments were held in March 2025, and the Federal Circuit just issued its decision granting Google a new trial on damages.

What will be the future of patent damages after the Federal Circuit en banc decision? This panel will discuss damages calculations generally, the Federal Circuit’s en banc decision EcoFactor, the recently amended  Rule 702 (and the intersection with Daubert), and other cases of note, particularly the UK decision in the Optis v. Apple, which resulted in a $502 million verdict for a worldwide fair reasonable and non-discriminatory (FRAND) license for 4G standard essential patents (SEPs) patents.

Materials

• Split En Banc CAFC Says Google Gets a New Trial on Damages, Scrapping $20 Million Award for EcoFactor
• UK Court of Appeal Bumps Apple FRAND Payment to Optis Up to $502 Million
• Old Method, New Applications in Damages Calculations
• How Recent Patent Damages Precedent May Increase Reasonable Royalty Awards

Survey

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