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Patent Lost Profit Damages and Apportionment
On Sept. 1, 2017, a split Federal Circuit declined to rehear a panel decision in Mentor Graphics Corp. v. EVE-USA, Inc., Nos. 2015-1470, 2015-1554, 2015-1556, a case that could have significant implications for lost profit damages and apportionment.
Mentor Graphics Corp. (Mentor) and a series of Synopsys entities (Synopsys, Inc., Synopsys Emulation and Verification S.A.S., and EVE-USA, Inc. (collectively, Synopsys)) design and sell emulators to Intel that are used to debug hardware description-level code used for semiconductor fabrication. In litigation in the District of Oregon, Mentor asserted several patents relating to its computer emulator technology against Synopsys, and Synopsys asserted two of its emulator patents against Mentor. See, Mentor Graphics Corp., 851 F.3d 1275, 1280-81 (Fed. Cir. 2017). In a trial on Mentor's U.S. Patent No. 6,240,376 (the '376 patent), the jury found infringement and awarded approximately $36 million in lost profits damages. Both parties appealed various summary judgment and post-trial rulings, including the jury's lost profits award. See, id. at 1281-84. Among other things, Synopsys argued that the damages award should be vacated because it was not apportioned. See, id. at 1283.
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