A few years ago, against the backdrop of patent reform, the U.S. Court of Appeals for the Federal Circuit threw out a half-billion dollar verdict against Microsoft because of “a lack of evidence demonstrating the patented method … as the basis — or even a substantial basis —of consumer demand for Outlook.” (Lucent Tech. v. Gateway Inc., 580 F.3d 1301 (Fed. Cir. 2009).) The authors interpreted that decision and others at the time to reflect the Federal Circuit’s defense of judicial prerogative. By insisting on proof of a causal relation between the patented technology and the economic basis for damages, the Federal Circuit brought about a sea change in patent damages jurisprudence (and patent reform without provisions for damages).
In a recent headline-grabbing case, the Federal Circuit has revisited the issue of causation, this time in the context of equitable relief, twice turning away Apple’s requests to preliminarily enjoin Samsung because Apple had not established sufficient causal nexuses between consumer demand and the allegedly infringing features. Though concededly far from a case involving patent trolls, the Apple-Samsung battle is taking place against the backdrop of continuing outcry concerning patent enforcement activities, and the Federal Circuit is surely once again aware of the consequences of its high-profile decisions.
