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).
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