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The Federal Circuit reversed the district court’s grant of summary judgment of no damages for infringement.  The district court had stricken the plaintiff’s damages expert’s testimony on the grounds that he had improperly relied on the 25% rule of thumb.  As a result, the court held that plaintiff would have no evidence of damages at trial and thus granted summary judgment.  The Federal Circuit, however, held that, although the court was correct to strike the damages expert, a court can only award a zero royalty where there is no genuine issue fact that zero is the only reasonable royalty.  The court must deny summary judgment where there exists a factual issue regarding whether the patentee is due any non-zero royalty.  Even where the patentee’s proof is weak, the court may award nominal damages. Here, there was deposition testimony on which the patentee could rely to show a non-zero royalty, thus requiring reversal. 

Info-Hold, Inc. v. Muzak LLC, Case No. 2014-1167 (April 24, 2015); Opinion by: Reyna, joined by Wallach and Taranto; Appealed From: District Court for the Southern District of Ohio, Black, J. Read the full opinion here.

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