throbber
No. 19-832
`
`IN THE
`Supreme Court of the United States
`————
`APPLE INC.,
`
`Petitioner,
`
`v.
`VIRNETX INC., LEIDOS, INC.,
`Respondents.
`
`————
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals
`for the Federal Circuit
`————
`BRIEF OF HIGH TECH INVENTORS
`ALLIANCE, HP INC., AND LENOVO
`(UNITED STATES) INC. AS AMICI CURIAE
`IN SUPPORT OF THE PETITIONER
`————
`
`STANLEY J. PANIKOWSKI
`SEAN C. CUNNINGHAM
`ERIN P. GIBSON
`DLA PIPER LLP (US)
`401 B Street, Suite 1700
`San Diego, CA 92101-4297
`(619) 699-2700
`
`COURTNEY GILLIGAN SALESKI
`Counsel of Record
`DLA PIPER LLP (US)
`One Liberty Place
`1650 Market Street
`Suite 4900
`Philadelphia, PA 19103
`(215) 656-2431
`courtney.saleski@dlapiper.com
`Counsel for Amici Curiae
`February 13, 2020
`
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002
`
`

`

`
`TABLE OF CONTENTS
`
`INTEREST OF AMICI CURIAE ........................
`SUMMARY OF THE ARGUMENT ....................
`I. THIS
`COURT’S
`PRECEDENT
`REQUIRES THE TRIAL COURT TO
`ENSURE APPORTIONMENT OF DAM-
`AGES BETWEEN PATENTED AND
`UNPATENTED FEATURES ...................
`II. THE FEDERAL CIRCUIT’S “PRIOR
`LICENSES” SHORTCUT
`IS NOT
`APPORTIONMENT AND THEREFORE
`IS
`INCONSISTENT WITH THIS
`COURT’S PRECEDENT ...........................
`III. IT IS IMPORTANT TO CORRECT THIS
`LEGAL ERROR NOW ..............................
`CONCLUSION ....................................................
`
`Page
`
`1
`4
`
`6
`
`8
`
`11
`15
`
`(i)
`
`

`

`ii
`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`7
`
`11
`
`9
`
`7
`
`7
`
`9
`
`Dowagiac Mfg. Co. v. Minn.
`Moline Plow Co.,
`235 U.S. 641 (1915) ...................................
`eBay Inc. v. MercExchange, L.L.C.,
`547 U.S. 388 (2006) ...................................
`Elbit Systems Land & C4I Ltd. v. Hughes
`Network Systems, LLC,
`927 F.3d 1292 (Fed. Cir. 2019) ................. 8, 9
`Ericsson, Inc. v. D-Link Systems, Inc.,
`773 F.3d 1201 (Fed. Cir. 2014) .................
`Garretson v. Clark,
`111 U.S. 120 (1884) ................................... 5, 6, 9
`Georgia-Pacific Corp. v. United States
`Plywood Corp.,
`318 F. Supp. 1116 (S.D.N.Y. 1970) ...........
`Seymour v. McCormick,
`57 U.S. 480 (1853) .....................................
`Sprint Communications Company, L.P. v.
`Time Warner Cable, Inc.,
`760 F. App’x 977 (Fed. Cir. 2019) .............
`Uniloc USA, Inc. v. Microsoft Corp.,
`632 F.3d 1292 (Fed. Cir. 2011). ................
`STATUTES
`35 U.S.C. § 284 ............................................. 4, 10
`RULES
`Fed. Cir. R. 36 ...............................................
`
`14
`
`14
`
`
`
`

`

`INTEREST OF AMICI CURIAE
`Pursuant to Supreme Court Rule 37.2, amici curiae
`High Tech Inventors Alliance, HP Inc., and Lenovo
`(United States) Inc. respectfully submit this brief as
`amici curiae in support of the petition for certiorari
`with respect to the first question presented (damages).1
`The High Tech Inventors Alliance (“HTIA”) is a coali-
`tion of high technology companies that was created to
`advocate on patent law and policy issues.2 HTIA
`members are some of the most innovative technology
`companies in the world, creating the computer, software,
`semiconductor, and communications products and
`services that support growth in every sector of the
`economy. HTIA members invest over $100 billion in
`research and development each year and collectively
`hold more than 300,000 patents. HTIA is a strong
`supporter of the patent system and of effective patent
`protection. At the same time, its members—like many
`successful technology companies—have frequently been
`defendants in suits brought by increasingly sophisticated
`non-practicing entities seeking a return on litigation
`as a portfolio investment strategy.
`HP Inc. is a global leader in innovative personal
`computing devices, printers, 3D printing, and related
`services and solutions. HP owns over 27,000 patents
`
`
`1 Pursuant to Supreme Court Rule 37.6, amici certify that no
`counsel for a party authored this brief in whole or in part, and
`that no such counsel or party (other than amici or their counsel)
`made a monetary contribution to the preparation or submission
`of this brief. Counsel of record for all parties received timely
`notice of the intent to file this brief and consented to its filing.
`2 HTIA is described at https://www.hightechinventors.com/.
`HTIA members are Adobe, Amazon.com, Cisco, Dell, Google,
`Intel, Microsoft, Oracle, Salesforce, and Samsung.
`
`

`

`2
`and is also targeted as a defendant in patent infringe-
`ment lawsuits.
`Lenovo (United States) Inc. and its affiliates manu-
`facture one of the world’s widest portfolios of connected
`products and data center solutions, and collectively
`run more than 40 research and development laboratories
`and employ over three thousand R&D professionals.
`The Lenovo group of companies own more than 13,700
`patents and are also targeted as defendants in patent
`infringement lawsuits.
`Accordingly, amici have a strong interest in a patent
`system that balances the rights of both patent owners
`and producers who are accused of infringement. This
`interest includes ensuring that patent damages awards
`are based on reliable methodologies and circumscribed
`by principles of apportionment that this Court has
`held to be required in patent cases.
`Being simultaneously patent owners and producers,
`HTIA members and the other amici have extensive
`experience as both licensors and licensees of intellec-
`tual property. HTIA members and the other amici are
`thus familiar with the many complex, circumstance-
`specific factors and interests—economic, technical,
`litigation-induced, and strategic—that go into every
`license or cross-license negotiation. They also must
`grapple with the interplay between license negotia-
`tions and patent damages awards. Often, a company
`accused of patent infringement will agree to terms of
`a license that is acceptable in the short term for that
`company, and even allow the patent holder to insert
`self-serving language that does not affect the practical
`obligations for the current licensee, but can be used
`by the patent owner in later litigation against other
`companies. These licenses are then given excessive
`significance in later litigation, distorting patent damages
`
`

`

`3
`calculations. Courts must therefore ensure careful
`treatment of licenses in patent damages litigation.
`The topic is especially unsuitable for overbroad assump-
`tions like the one the Federal Circuit has embraced here.
`The effect of patent damages jurisprudence on both
`litigation and licensing is considerable. Perhaps no
`principle of that jurisprudence is more important than
`apportionment: if a patentee secures a damages award,
`then the award must reflect no more than the value of
`the patented technology in the accused products. A
`patentee cannot recover any portion of the product’s
`value attributable to its unpatented features. In the
`realm of computer software and hardware, the exist-
`ence of many features and functionalities within a
`single program or device makes the rigorous application
`of apportionment principles especially crucial. A
`patentee is not permitted to recover damages on any
`portion of the innovations attributable to the producer
`or to other third parties. If even one loophole to this
`Court’s invariable rule of apportionment is allowed,
`then innovation and economic production can be unfairly
`taxed and chilled by inflated patent damages awards.
`The Federal Circuit has created such a loophole by
`permitting patentees to rely on past licenses in a
`manner that completely circumvents apportionment
`principles. Specifically, the Federal Circuit has
`codified an assumption that any license has “built in”
`apportionment such that the value of an accused
`product that is attributable to unpatented features
`need not be addressed with case-specific economic
`evidence. This approach allows damages awards that
`go far beyond compensation for use of the patented
`technology itself. The Federal Circuit’s rule thus
`conflicts with this Court’s precedent and the Patent
`Act. In addition, this approach reflects a blanket
`
`

`

`4
`assumption about the behavior of parties to license
`agreements that simply does not comport with the
`realities, nuances, and variety of real-world license
`negotiations, especially when many of these licenses
`are entered into during or under threat of litigation.
`This case, in which this non-apportionment method-
`ology yielded nearly a half-billion dollar damages
`award, puts the “prior license” loophole to apportion-
`ment squarely at issue. This Court should grant
`review to close it.
`
`SUMMARY OF THE ARGUMENT
`This Court’s precedents require apportionment to
`support patent damages claims. Apportionment is
`needed to separate the value of the patented features
`of the accused products from their unpatented fea-
`tures. The purpose is to ensure that any recovery by
`the patentee is limited to the economic footprint of the
`patented invention in the market place for the accused
`products. Otherwise, patentees might reap an unjusti-
`fied windfall from the innovations of others, including
`the accused producer. Such windfalls would impose a
`tax on innovation that is inconsistent with the compen-
`satory aim of the Patent Act. See 35 U.S.C. § 284
`(“Upon finding for the claimant the court shall award
`the claimant damages adequate to compensate for the
`infringement, but in no event less than a reasonable
`royalty for the use made of the invention by the
`infringer, together with interest and costs as fixed by
`the court.”) (emphasis added).
`In theory, no one—not the parties, not the Federal
`Circuit—disagrees that apportionment is required
`in this and every other patent damages case. The
`problem is that the Federal Circuit has authorized a
`shortcut that it labels “apportionment,” but which in
`
`

`

`5
`reality involves no apportionment at all. Specifically,
`it has blessed a damages methodology that enables
`patentees to identify a per-unit royalty based solely on
`patent licenses involving different parties and products,
`and serve up to the jury that same per-unit royalty,
`taking no account of the different value that unpat-
`ented features contribute to the particular accused
`products. According to the Federal Circuit, this method-
`ology subsumes apportionment because the parties to
`the “comparable” license agreements are assumed to
`have apportioned in negotiating that license.
`Courts, however, have a duty under Garretson to
`ensure that apportionment occurs on the basis of the
`relative contributions of the specific patented and
`unpatented features of the particular accused products
`in the case. Courts cannot outsource this duty to
`the past actions of parties to other licenses involving
`different accused products.
`This legal error not only skews damages awards
`upward, but it also gives patentees an incentive to
`selectively identify licensing partners to create artifi-
`cially favorable license agreements. For example, a
`patentee may seek to first license wireless technology
`to a small chip manufacturer for whom the patented
`technology is a critical component. The chip manufac-
`turer may be willing to pay a high royalty given the
`cost of litigation and the risks to the manufacturer
`from a loss. Then, armed with a high per-unit royalty,
`the patentee may seek the same number from a laptop
`manufacturer further down the supply chain. But the
`value to the laptop manufacturer of the patented wire-
`less technology—one feature among many, implemented
`by one component among hundreds—is likely to be
`much less than it was to the chip manufacturer. Or
`the patentee might seek out low-volume (or even no-
`
`

`

`6
`volume) licensees willing to enter into agreements that
`are low in total dollars but high in effective royalty
`rate. For example, a licensee that sells only 1,000 units
`likely would be willing to accept a license for $10 a unit
`(for a total payment of $10,000) rather than litigate,
`because the total cost of the license is far less than the
`expected litigation costs. And, although the license
`royalty rate reflects only the value to the licensee of
`avoiding litigation, the patent owner is then able to
`claim it has a $10 per unit royalty in a subsequent suit
`against a manufacturer that sells millions of units per
`year.
`Absent an apportionment analysis that is individu-
`alized to the particular defendant and accused products
`in suit, such license agreements become evidentiary
`super-weapons in patent litigation. Even when the
`rates are purportedly “adjusted” in a “comparability”
`analysis, such licenses can be used to set an overly
`high boundary within which the jury may then operate
`in calculating damages. Only a rigorous application
`of apportionment principles—parsing the value of
`patented and unpatented features in the context of the
`specific accused products at issue and avoiding assump-
`tions about the context of a particular license—can
`rein in this process. Review is warranted to avoid
`these consequences by restoring fidelity to the Patent
`Act and this Court’s precedents.
`
`I. THIS COURT’S PRECEDENT REQUIRES
`THE TRIAL COURT TO ENSURE APPOR-
`TIONMENT OF DAMAGES BETWEEN
`PATENTED AND UNPATENTED FEA-
`TURES
`In every patent infringement case, this Court requires
`apportionment of damages between patented and unpat-
`ented features of the accused products. See Garretson
`
`

`

`7
`v. Clark, 111 U.S. 120, 121 (1884) (“‘The patentee . . .
`must in every case give evidence tending to separate
`or apportion the defendant’s profits and the patentee’s
`damages between the patented feature and the unpat-
`ented features.’”); see also Dowagiac Mfg. Co. v. Minn.
`Moline Plow Co., 235 U.S. 641, 646 (1915) (espousing
`same rule); Seymour v. McCormick, 57 U.S. 480, 490-
`91 (1853) (espousing same rule). Any patent damages
`analysis, therefore, needs an inquiry into the relative
`extents to which patented and unpatented features
`drive demand or otherwise account for the value of the
`accused product. Comparable real-world licenses, where
`available, can be a relevant factor in that analysis. See
`Georgia-Pacific Corp. v. United States Plywood Corp.,
`318 F. Supp. 1116, 1120 (S.D.N.Y. 1970). But nothing
`in this Court’s precedent suggests that reliance on
`real-world licenses alone automatically satisfies the
`apportionment requirement.
`Nor does practical reality support such an assump-
`tion. As HTIA members and the other amici can attest
`from experience, patent license agreements are the
`product of a variety of circumstance-specific factors
`and interests. Negotiations can be undertaken under
`various pressures—the pressure of a product release,
`the pressure of a jury trial, the pressure of avoiding
`litigation in order to focus on more pressing business
`matters—and the final product often reflects an uneasy
`compromise between the interests of the parties to the
`particular agreement. Even when examining one par-
`ticular agreement, it may be difficult to answer whether
`and how any “apportionment” in fact occurred. It is
`that much less appropriate to assume automatically
`that it occurs all the time. And even if license parties
`use some form of “apportionment” in negotiating a
`rate, that cannot satisfy the apportionment requirement
`
`

`

`8
`in litigation involving different parties, patents, and
`accused products.
`
`“PRIOR
`II. THE FEDERAL CIRCUIT’S
`LICENSES”
`SHORTCUT
`IS
`NOT
`APPORTIONMENT AND THEREFORE IS
`INCONSISTENT WITH THIS COURT’S
`PRECEDENT
`While recognizing in theory a court’s duty to hold
`patentees to their burden of apportionment, the
`Federal Circuit has in practice created an exception to
`apportionment in reasonable royalty cases.
`This legal error manifests itself clearly in Elbit Systems
`Land & C4I Ltd. v. Hughes Network Systems, LLC,
`927 F.3d 1292 (Fed. Cir. 2019). In Elbit, the Federal
`Circuit determined that the jury properly relied on the
`patentee’s damages expert’s use of a per-unit royalty
`figure from a prior license agreement “for one-way
`technology, together with [accused infringer]-based
`evidence that two-way technology was worth at least
`an additional 20%, to arrive at [a] proposed per-unit
`figure.” Id. at 1300. The court of appeals went
`astray in holding that this analysis alone satisfied the
`apportionment requirement on the theory that appor-
`tionment “‘is essentially embedded in [the] comparable
`value’ from the [prior license] Agreement concerning a
`comparable component of a larger product or service.”
`Id. at 1301. The court likewise embraced the patentee’s
`damages expert’s testimony that the “‘requisite appor-
`tionment is implicitly considered within the royalty
`rate’” of the prior license agreement. Id. “Rather than
`‘parse out a value for each of the claims,’” the expert
`“‘came up with a market, comparable royalty rate, and
`then [he] adjusted it as necessary’ for the hypothetical
`negotiation.” Id. (alteration in original).
`
`

`

`9
`The Federal Circuit maintained that the patentee
`had properly used the prior license to “fulfill the
`apportionment requirement.” Id. But the court
`did not point to any evidence bearing on the
`apportionment of value “between the patented feature
`and the unpatented features” of the accused products
`as this Court requires, Garretson, 111 U.S. at 121
`(emphasis added). The Federal Circuit instead held
`that, in using the prior license agreement “as his
`starting point, [the expert’s] analysis could reasonably
`be found to incorporate the required apportionment.”
`Elbit, 927 F.3d at 1301; accord Sprint Communications
`Company, L.P. v. Time Warner Cable, Inc., 760 F.
`App’x 977, 983-84 (Fed. Cir. 2019) (“[D]amages testi-
`mony regarding real-world relevant licenses ‘takes
`into account the very types of apportionment princi-
`ples contemplated in Garretson.’” (quoting Ericsson,
`Inc. v. D-Link Systems, Inc., 773 F.3d 1201, 1227-28
`(Fed. Cir. 2014))). This automatic assumption of appor-
`tionment, which likewise supported the summary
`affirmance in this case, is not the same as the perfor-
`mance of apportionment that this Court’s precedents
`require. Apportionment requires an individualized
`assessment that takes into account the value of both
`patented and unpatented features to the specific accused
`products in the case. See Garretson, 111 U.S. at 121.
`The Federal Circuit’s approach is inconsistent with
`this requirement because it allows a patentee to
`bypass any proof of the relative technical and economic
`contributions of the patented and unpatented features
`to the actual accused products.
`Moreover, this blanket assumption about “real-
`world” licenses does not itself reflect the real world.
`There may be substantial differences both in the moti-
`vations of the parties to the license and to the license
`structure itself even in situations with the same
`
`

`

`10
`licensor, the same patents, and different licensees in
`the same product market. Even renegotiation of a
`license between the same exact parties at the end of
`the initial license’s term may result in a substantially
`different effective royalty rate due to circumstances
`having nothing to do with the relative contributions of
`patented and unpatented features to the licensed
`products. Litigation avoidance, the desire to protect
`downstream customers from licensing demands and
`potential lawsuits, the value of any other rights or
`assets that may be exchanged in the license agree-
`ment, changes in statutory or case law, and various
`economic and strategic considerations may shape the
`outcome. If the effective royalty rate can vary by an
`order of magnitude in these situations, then it is
`unrealistic to suppose that the Federal Circuit’s com-
`parability requirement (where the prior license often
`involves different parties, different products, and
`different patents) can substitute for the individualized
`apportionment that this Court’s precedent and § 284
`of the Patent Act require. There is too much complex-
`ity and variety in those negotiations and their outcomes
`to support a blanket assumption that the parties
`negotiated a license rate that separates the value of
`the patented technology from the value of the unpat-
`ented features in the licensed products.
`Accordingly, there are no universal truths about
`whether parties “build in” apportionment, nor how
`and to what extent apportionment is or is not achieved
`when one or both parties pursue some approximation
`of it. When licenses are sufficiently comparable to be
`admissible and properly adjusted to be usable in a
`particular case, they may supply one piece of market
`information that informs what compensation is due for
`the use of a patented invention under 35 U.S.C. § 284.
`But to assume that prior licenses have already accom-
`
`

`

`11
`plished the work of apportionment that the patentee
`is required to perform in the particular case at hand
`is far too much weight for the variable enterprise of
`patent licensing to bear. This Court should grant
`review to restore licenses to their previous place as a
`tool—not a talisman—in the damages analysis.
`
`III. IT IS IMPORTANT TO CORRECT THIS
`LEGAL ERROR NOW
`Review should be granted to uphold the apportion-
`ment requirement and restore the use of prior licenses
`to their proper place in a patent damages analysis.
`Prior licenses of course can be a factor in the analysis,
`but they are not a super-factor that can simply substi-
`tute for true apportionment between patented and
`unpatented features of the accused product at issue.
`Multiple practical problems flow from the Federal
`Circuit’s endorsement of this non-apportionment
`methodology.
`First, the Federal Circuit’s rule confers undue lever-
`age on patentees. The mere threat of extracting a
`portion of a product’s value that is not carefully tied to
`the (often very small) patented contribution may lead
`inefficiently to settlements far out of proportion with
`economic reality. This is particularly harmful where
`the value of the allegedly infringing product is due
`largely to the accused manufacturer’s own innovation,
`while the value of the earlier-licensed product was
`more closely tied to the patented invention. This
`result is inconsistent with the compensatory purpose
`of patent damages and upsets the balance between
`access to ideas and incentives for innovation that the
`patent system is designed to achieve. It is also a
`familiar problem that this Court’s patent jurispru-
`dence has assuaged in other contexts. See eBay Inc. v.
`MercExchange, L.L.C., 547 U.S. 388, 396-97 (2006)
`
`

`

`12
`(“When the patented invention is but a small compo-
`nent of the product the companies seek to produce and
`the threat of an injunction is employed simply for
`undue leverage in negotiations, legal damages may
`well be sufficient to compensate for the infringement
`and an injunction may not serve the public interest.”)
`(Kennedy, J., concurring).
`Especially in technology fields in which HTIA
`members and the other amici innovate and compete,
`products with numerous components and seemingly
`countless features are now commonplace. These features
`are often implemented by components manufactured by
`third parties extending along a lengthy supply chain.
`So the risk of compensating patentees for the value of
`features in the specific accused product, unrelated to
`the asserted patented technology, is higher than ever.
`This does not mean, of course, that absolute precision
`must be demanded before any damages may be awarded.
`But the inflexible, overbroad assumption that was
`applied in this case errs to the opposite extreme. As
`this shortcut continues to grow in prominence and
`success for patentees, the previously-required path to
`apportionment—economic analysis of the value attribut-
`able to patented, as opposed to unpatented, features in
`the actual accused products—will become increasingly
`abandoned.
`The larger damages verdicts that this shortcut
`allows, in turn, will confer greater leverage on patent-
`ees in license negotiations. Then the elevated royalty
`rates that may emerge from those negotiations will be
`used in litigation to propel an inexorable upward
`spiral in damages awards. This feedback loop between
`license rates and damages awards makes it especially
`appropriate for this Court to grant review of this issue
`now. The misuse of licensing in litigation paves the
`
`

`

`13
`way for the threat of litigation to be misused in
`licensing. Whether the excessive amounts are paid in
`the form of damages or license rates, the result is the
`same: a tax on producers’ own innovations, one of the
`very things apportionment principles exist to avoid.
`Nor is it a good answer to say that these concerns
`will all come out in the wash of a “comparability”
`analysis. See Section II, supra. Comparability (a
`binary determination as to whether the circumstances
`of a prior license are similar to the case at hand) is
`not the same thing as apportionment (the separation
`of value between patented and unpatented features
`with respect to a specific accused product). Yet the
`damages methodology endorsed by the Federal Circuit
`allows comparability to swallow apportionment whole
`without actually digesting it.
`Likewise, the rule applied in this case encourages
`collusive or sham licenses that at least nominally
`reflect an inflated royalty rate. Such rates, in turn,
`can be improperly used to raise the bar for damages
`awards against other producers because they will be
`automatically deemed to “build in” apportionment. As
`the Federal Circuit’s blanket assumption has taken
`root, patentees have even greater incentive to seek out
`one or more licensees who will agree to a high effective
`royalty despite paying few (sometimes zero) actual
`dollars. These artificially inflated licenses then become
`the anchors of damages presentations to the jury. The
`relative value of the patented and unpatented features
`of the particular accused products remains unaccounted.
`And these artificial license rates, unencumbered by
`actual apportionment for the case at hand, improperly
`“skew the damages horizon for the jury, regardless of
`the contribution of the patented component . . . ,”
`
`

`

`14
`Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292,
`1320 (Fed. Cir. 2011).
`Second, the disproportionate damages awards that
`the Federal Circuit’s rule permits can cause especially
`severe problems of damages stacking that will deter
`production and innovation. Manufacturers and sellers
`are often subject to multiple lawsuits by separate
`parties asserting different patents against the same
`product, and may face the threat of multiple damages
`awards on those products. It is bad enough when
`one patentee receives a monetary windfall from the
`contributions that others have made to the value of an
`accused product. It is that much worse when multiple
`patentees make withdrawals from this account that
`properly belongs to someone else. This is especially
`problematic for producers like HTIA’s members and
`the other amici, who constantly confront defensive
`patent litigation and licensing demands, and depend
`upon a rational regime of patent remedies that will not
`force cumulative payments that altogether exceed the
`value of their products.
`Far from making this case unsuitable for review, the
`Federal Circuit’s Rule 36 affirmance confirms that it
`has spoken definitively on this question. Given the
`Federal Circuit’s exclusive jurisdiction over patent
`cases, there is also no realistic possibility of a circuit
`split. As a result, no further percolation of the issue
`can reasonably be expected in the courts of appeals.
`Nor is it required. The issue is ripe and squarely
`presented in this case.
`The black boxes of jury verdicts and Rule 36
`affirmances cannot absolve the Federal Circuit’s legal
`error that excuses genuine apportionment of patent
`damages in a broad class of cases. That is especially
`so here, where the black box contains no evidence
`
`

`

`15
`uninfected by the legal error that could have supported
`the damages verdict. The petition for certiorari squarely
`presents a pure question of patent damages law that
`calls for immediate resolution of the clear conflict with
`this Court’s precedent. There is no reason to wait for
`another case to come along. Review is needed now to
`prevent continued bypassing of this Court’s apportion-
`ment requirement.
`
`CONCLUSION
`Amici respectfully ask this Court to grant the
`petition for certiorari to address the important question
`relating to apportionment of damages in patent cases.
`
`Respectfully submitted,
`
`STANLEY J. PANIKOWSKI
`SEAN C. CUNNINGHAM
`ERIN P. GIBSON
`DLA PIPER LLP (US)
`401 B Street, Suite 1700
`San Diego, CA 92101-4297
`(619) 699-2700
`
`COURTNEY GILLIGAN SALESKI
`Counsel of Record
`DLA PIPER LLP (US)
`One Liberty Place
`1650 Market Street
`Suite 4900
`Philadelphia, PA 19103
`(215) 656-2431
`courtney.saleski@dlapiper.com
`Counsel for Amici Curiae
`February 13, 2020
`
`

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