Wednesday, July 23, 2014

Follow-up to the Discussion of ALJ Essex's FRAND Analysis


I reported recently on the June 26, 2014 publication of the public version of ALJ Essex's initial determination in In the Matter of Certain Wireless Devices with 3G and/or 4G Capabilities and Components Thereof,  United States International Trade Commission Investigation No. 337-TA-868.  Although the judge concluded that the respondents' products did not infringe InterDigital's patents, he went on to address (and reject) their arguments that an exclusion order would be inappropriate because the patents in suit were FRAND-encumbered SEPs.  In a follow-up post, I stated that I would take a look at the four third-party submissions on the FRAND issue—which have already been summarized on, and are available for download from, the Essential Patents blog—and would respond to some comments on my earlier post.  (Since then, as reported yesterday on Essential Patents, InterDigital filed its own public interest statement too.)   So, here goes. 

First off, I don’t think that the third-party submissions add a whole lot new to the mix.  Three of the four submissions (filed by Ericsson, the Innovation Alliance, and Senator Bob Casey) supported InterDigital, while one (filed by Microsoft) supported the respondents.  The statements that struck me the most were from Ericsson—in particular Ericsson’s statement that "as the ALJ rightly found, neither "law nor public policy require [the Commission] to offer [implementers] a safe haven, where they are free to avoid their own obligations under the agreements, can manufacture potentially infringing goods without license or consequence, can seek to invalidate the [patents] in question and yet are free from the risk of' an exclusion order."  (Ericsson repeats the point at p. 5, stating that "as the ALJ recognized . . . if exclusion orders are unavailable . . . 'the only risk to [the implementer] for violating the agreement is to pay a FRAND based royalty or fee.'")  The point is similar to that raised in the Müller-Henke paper that I blogged about last week, where the authors state that an infringer who makes use of the “safe harbor” the European Commission refers to in its Memo, Antitrust Decisions on Standard EssentialPatents (SEPs) - Motorola Mobility and Samsung Electronics - Frequently AskedQuestions, will be no worse off than if it had directly concluded a license. 

As I stated in that post, however, I don’t find this line of analysis persuasive.  An analogy that comes to mind is that, if I say you owe me a $10,000 debt and you say you don't, I can take you to court and if I prevail you have to pay up.  (I realize that the question of whether FRAND commitments are contractual in nature is a hotly contested one; I'm just using this example to illustrate a point, not to advocate a position on the contract question).  In a sense, one might say that you're no worse off contesting the debt, but that’s the way it goes if we want to preserve your right to a day in court.  And of course, you are worse off to the extent you've incurred your own attorneys' fees, and even more so if you have to pay mine.  Plus I am entitled to interest on the judgment, and as long as the interest is properly computed ultimately I’m no worse off.  (To be fair, I recognize that interest might not always be properly computed, and there is no compensation due for either side’s having to devote time to litigation that could more productively be spent doing something else.)  So at the end of the day I'm still having a hard time seeing why, going back to the FRAND context now, an injunction or exclusion order is necessary.  The main reasons for awarding injunctions in patent cases (which I think are often valid) are to reduce adjudicative and error costs that flow from having courts instead of parties determine patent value.  The main reason for not doing so is to avoid a situation where the patent owner can extract switching costs as part of the royalty.  In my judgment, the latter is a serious consideration in the FRAND context, and a right to injunctive relief makes it worse.

That said, I agree generally with Ericsson, Innovation Alliance, and ALJ Essex (and with Professor Risch, who commented on my July 9 post) that the implementer must indeed be willing to negotiate in good faith.  If the evidence shows that the implementer is acting in bad faith perhaps an injunction is appropriate—though inevitably there will be quite a difference of opinion on the question of what it means for the implementer to act in bad faith, and this is an issue that I need to focus on more deeply in the coming weeks.  I am inclined to think, though, that any approach to implementer bad faith must take into account the fact that, in general, a substantial plurality (or more) of asserted patents are either invalid or not infringed, in which case that the patent owner is legally entitled to no royalty whatsoever.

The other issue that came up in the comments to my post was whether ALJ Essex was correct in concluding that implementers should negotiate before implementing, or whether this is practically infeasible in the SEP context.  Like Professor Siebrasse, I was inclined to think the latter, but I’d be interested in hearing more about this topic.  To be sure, implementers who are SSO members themselves are aware of what is likely going to go into the standard as the standard adoption process evolves, as Kirti Gupta points out here.  But does that necessarily mean that they have a realistic opportunity to negotiate all of the necessary patent licenses in advance?  Note that the “nondiscrimination” aspect of FRAND could play a role here, as Richard Gilbert and others have pointed out:
Bilateral negotiations over licensing terms that occur before a standard issues protect those who make binding agreements with rights holders. But those who do not negotiate ex ante, including technology adopters that enter the industry after a standard has issued, may be exposed to ex post opportunistic conduct. The non-discrimination prong of a FRAND commitment can provide an umbrella of protection for technology users that negotiate licenses after firms and consumers have made investments that are specific to a standard.18
18/ Anne Layne-Farrar, Considering Whether Ex Ante Joint Negotiations within Standard Setting Are “Reasonably Necessary,” GCP (May 2008) and Anne Layne-Farrar, Gerard Llobet, & Jorge Padilla, Preventing Patent Hold Up: An Economic Assessment of Ex Ante Licensing Negotiations in Standard Setting, 37 AIPLA Q. J. 445 (2009) (Once pivotal players obtain reasonable rates, the “non-discriminatory” component of a RAND licensing commitment ensures that other pivotal players receive reasonable rates as well).
Of course, for that to work, we need a better understanding of what nondiscriminatory means in the FRAND context (see this paper by Dennis Carlton and Allan Shampine), and the parties would need to know the terms of the licenses that have been granted to others.  Nothing is easy in this space.

Monday, July 21, 2014

PricewaterhouseCoopers Releases Its 2014 Patent Litigation Study

On July 10 PricewaterhouseCoopers released its 2014 Patent Litigation Study, available here.  (The focus is on U.S. patent litigation only.)  From the introduction:
In some ways, 2013 appeared to be a moderating year in patent infringement litigation. The “mega” verdicts of prior years (2012 saw three cases that resulted in damages awards of over $1 billion) were missing, with the largest new award falling to just over $200 million.1 Four of the ten largest awards from previous years were settled, overturned, modified or remain under appeal in 2013. And the median damages award continued its gradual downward tapering, to $4.3 million in the most recent four-year period.
On the other hand, both the number of patent cases filed and the number of patents granted continued to grow rapidly in 2013—by 25% (to almost 6,500 cases) and 7% (to almost 300,000 patents), respectively, over 2012. And mega-cases continued to make headlines, including one involving an “at-risk” launch of a generic pharmaceutical that was settled mid-trial for $2.15 billion, and another matter involving medical devices where post-trial bench consideration added substantial punitive damages, potentially bringing total damages to over $1 billion. The year 2013 also saw the continuation of the multi-year “smartphone wars,” both in district courts and before the International Trade Commission (ITC).
Nonpracticing entities (NPEs) continued to play a growing role in patent litigation in 2013. One recent analysis reported that in 2013 NPEs filed 67% of all new patent infringement cases, compared to 28% in 2009.2 Our statistics indicate that only 20% of identified decisions in 2013 involved NPE patent holders, reflecting the much higher tendency for NPE-filed cases to settle or be dismissed. However, as further detailed in this year’s study, NPEs’ median damages award in recent years has been triple that of practicing entities.
Also of considerable interest are the following, which I am quoting from the "Summary of Key Observations":
• The median jury award amounted to nearly 37.5 times the median bench award between 2010 and 2013. 
• Reasonable royalties remain the predominant measure of patent damages, consistently representing around 80% of awards since 2000. However, lost profits showed a surprising resurgence over the last four years, growing to a 37% share of the awards.
• NPEs have been successful 25% of the time overall, versus 35% for practicing entities, due to the relative lack of success for NPEs at summary judgment. However, both types of entities win about two-thirds of their trials.
• The median damages award in the telecommunications industry was the highest, at $22 million over the full study period. Biotechnology/pharmaceutical, medical devices, and computer hardware/electronics also had relatively high median damages awards, at double to triple the overall median across all industries. 
Unlike PwC's studies from previous years, this year's study also includes statistics on patent litigation appeals to the Federal Circuit.  According to the study, in "65% of appealed patent infringement decisions . . . some aspects of the appeal were affirmed while others were reversed, remanded or vacated.  Twenty-four percent of cases were affirmed in total and 11% were entirely reversed, vacated and/or remanded" (p.25).

Overall, this study provides a nice companion to the recently published Lex Machina Patent Litigation Damages Report, which I blogged about here.  One matter that strikes me as odd, though, is that PwC reports median damages for 2013 of $5.9 million (p.6), while Lex Machina reports a 2013 median compensatory award of only $688,000 (Lex Machina report p.15).  (Lex Machina also reports median enhanced damages of $699,000 (6 cases), median attorneys' fees of $199,000 (15 cases), and median prejudgment interest of $1.362 million (15 cases))  Perhaps the difference is attributable to methodology.  Lex Machina excludes "cross-category" decisions, which it defines as follows (p.vi):  "A cross-category damages award is one awarded on the basis of different claim types, without apportionment of the amount among those claim types, (or where documents specifying the types/apportionment are not available). For example, the much-publicized $290 million award in the November 2013 Apple v. Samsung case (N.D. Cal., 5:11-cv-01846-LHK) was not apportioned between patent infringement and trade-dress infringement; thus LMI classifies this award as cross-category."  (Query:  I thought there weren't any trade dress damages at issue in the November 2013 retrial?)  PwC appears to include such cases in its statistics, see p.2 n.1.  

On the other hand, it looks like Lex Machina may include more damages decisions overall.  If you look at Figure 7 (p.6) of the Lex Machina report, you'll see that from 2010-13 it reports a total of 116 reasonable royalty decisions, 46 lost profits decisions, and 101 "compensatory lump" decisions.  (At p.v, "compensatory lump" is defined as follows:  "Where a damages award is clearly compensatory but the specific sub-type (reasonable royalties or lost profits) is not specified or the apportionment of the award between sub-types is not specified, we have coded the award as a compensatory lump.")  Even given some overlap among these categories (say, in a case in which both lost profits and reasonable royalties are awarded and clearly apportioned), these numbers seem higher than the 114 decisions (total) that PwC reports at p.6 for 2010-13.

For the reports' respective statements about methodology, see the PwC study at p. 27 ("To study the trends related to patent decisions, PwC identified final decisions at summary judgment and trial recorded in two Westlaw databases, US District Court Cases (DCT) and Combined Jury Verdicts and Settlements (JV-ALL), as well as in corresponding Public Access to Court Electronic Records (PACER) system records."); Lex Machina report p. 63 ("This report draws on data from Lex Machina’s specialized intellectual property litigation database. Although most of our data is derived from litigation information publicly available from PACER (federal court system) or EDIS (the ITC system), Lex Machina applies additional layers of intelligence to bring consistency to, and ensure the completeness of, the data.").

Anyway, if readers notice that I'm missing or overlooking something important in my analysis of these two reports, I'd appreciate hearing what it is.

Friday, July 18, 2014

Law360 Article on the Top IP Verdicts of 2014

Ryan Davis of Law360 published an article last week titled Top IP Verdicts of 2014--and the Law Firms That Won Them.  According to the article, "[t]he largest [U.S.] intellectual property verdicts of 2014 so far include six that exceeded $100 million in damages," and the article discusses the seven verdicts so far this year that exceeded $50 million.  Citing the recent Lex Machina report on patent damages (see my post here), the article notes that there has overall been an upward trend in patent damages since 2008, but also that  "cases that result in nine-figure patent damages awards . . . represent only a tiny fraction of all patent litigation, since most cases settle."  The highest so far this year is the $393 million awarded to Edwards LifeScience against Medtronic (the case has since settled).  Number 4 on the list is the $120 million from the May installment of the Apple v. Samsung saga (see my posts here and here) which, you may recall, nevertheless was viewed largely as a victory for Samsung.

The article also quotes Kenneth Serwin of Berkeley Research Group, Owen Byrd of Lex Machina, and me.

Wednesday, July 16, 2014

Müller and Henke on the European Commission's Decisions in Samsung and Motorola

As most readers probably are aware by now, in April the European Commission published a press release accepting Samsung’s commitment not to seek injunctions within the European Economic Area for a period of five years for the unauthorized use of its SEPs relating to smartphones or tablets “against any company that agrees to a particular framework for licensing the relevant SEPs.”  According to the Commission, “[t]he licensing framework provides for a negotiation period of up to 12 months; and if no agreement is reached, a third party determination of FRAND terms by a court if either party chooses, or by an arbitrator if both parties agree on this.  An independent monitoring trustee will advise the Commission in overseeing the proper implementation of the commitments.”  The Commission also published a press release announcing its finding that Motorola Mobility had abused its dominant position by seeking and enforcing an injunction for the infringement of an SEP.  In this press release, the Commission stated:

Seeking injunctions before courts is generally a legitimate remedy for patent holders in case of patent infringements. However, the seeking of an injunction based on SEPs may constitute an abuse of a dominant position if a SEP holder has given a voluntary commitment to license its SEPs on FRAND terms and where the company against which an injunction is sought is willing to enter into a licence agreement on such FRAND terms. Since injunctions generally involve a prohibition of the product infringing the patent being sold, seeking SEP-based injunctions against a willing licensee could risk excluding products from the market. Such a threat can therefore distort licensing negotiations and lead to anticompetitive licensing terms that the licensee of the SEP would not have accepted absent the seeking of the injunction. Such an anticompetitive outcome would be detrimental to innovation and could harm consumers. . . .

The Commission also found it anticompetitive that Motorola insisted, under the threat of the enforcement of an injunction, that Apple give up its rights to challenge the validity or infringement by Apple's mobile devices of Motorola SEPs. Implementers of standards and ultimately consumers should not have to pay for invalid or non-infringed patents. Implementers should therefore be able to ascertain the validity of patents and contest alleged infringements.

Finally, in a separate document titled “Frequently Asked Questions,” the Commission also wrote that

Whether a company can be considered a "willing licensee" needs to be determined on a case by case basis taking into account the specific facts. Today's decisions provide a "safe harbour" for willing licensees who want to avoid the risk of being the subject of an injunction on the basis of SEPs, i.e. companies which, in case of dispute, are willing to have FRAND terms determined by a court or arbitrators (if agreed between the parties) and to be bound by such a determination. The decisions do not make findings on the willingness of licensees outside this "safe harbour".

We’re still waiting for the Commission to release its detailed findings in these two cases, but in the meanwhile Tilman Müller and Volkmar Henke have just published an article titled Patentdurchsetzung als Kartellrechtsvertoß.  Die Entscheidungen der EU-Kommission in Sachen Samsung und Motorola (“Patent Enforcement as Competition Law Offense:  The European Commission’s Decisions in the Samsung and Motorola Cases”) at pages 662-65 of the July 2014 issue of GRUR Int.  Here is the abstract (my translation from the German):

On April 29, 2014, the European Commission announced in two press releases that the competition law investigations against Samsung and Motorola had ended.  The specifics of the Commission decisions are not yet fully known, but the releases provide some principles for the enforcement of SEPs in Europe that may prove to be significant.

Drs. Müller and Henke argue, among other things, that for the time being litigants and courts in the E.U. are in an awkward position, insofar as the Commission's decisions in these two cases are not technically binding in other cases; the issue of whether the owner of a FRAND-encumbered SEP may seek injunctive relief is currently pending before the CJEU in the Huawei-ZTE case; and, at least in Germany, the Orange-Book-Standard procedure is still in place.  They also argue that the Commission's decision betrays a favoritism for infringers.  According to the authors, an infringer can, with minimal risk, make use of the procedure the Commission has spelled out and thereby figure that even in an unfavorable case it will be no worse off than if it had directly concluded a license ("Ein Verletzer kann beinahe risikolos die von der Kommission geforderte Verplichtungserklärung abgeben und damit rechnen, dass er selbst im ungünstigen Fall nicht schlechter steht als wenn er sich unmittelbar auf seinen Vergleichsabschluss eingelassen hätte.").  They also question how patent owners will in the future be fairly compensated for their contribution to the art, if their right to exclude others is taken away; and they wonder how the procedure the Commission envisions will play out if the compensation for single patents must be determined country-by-country, if there are hundreds of SEPs in a given portfolio, and if patent owners have to wait until the conclusion of lengthy proceedings to be compensated.

These are all fair questions; and as I've stated before, I'm not altogether convinced that addressing these types of issues through the lens of competition law, as opposed to the law of patent remedies, is ideal.  Nevetheless, as I've also stated before, I don't think it's quite right to state that allowing courts to award FRAND royalties and to dispense with injunctions in certain classes of cases is unduly favorable to infringers.  One could argue just as well, as indeed the Commission has, that an automatic entitlement to injunctive relief puts undue pressure on defendants to settle on terms that reflect the difficulty of designing around the SEP ex post (and therefore are not related to the inventor's contribution to the art).  Moreover, not every defendant necessarily is an infringer, given the high percentages of litigated patents that are either not infringed or invalid.  And if the defendant is an infringer and ultimately has to pay a FRAND royalty, it will also have to pay interest (albeit in some countries, including Germany, the interest is not compounded even though from an economic perspective it probably should be), its own attorneys' fees, and at least some portion of the patentee's attorneys' fees.  Finally, while it certainly is possible that the costs of litigating hundreds of patent royalties in dozens of countries could be enormous, one would expect that in most instances the parties will, at the end of the day, settle, as they do in most cases most of the time.

I do think it is fair to say, though, that the law in Europe will remain in a state of confusion until the CJEU renders its decision in Huawei v. ZTE.  And if that court mostly agrees with the Commission's perspective, perhaps the next major topic the European tribunals will need to take up will be how courts should calculate FRAND royalties.

Tuesday, July 15, 2014

ABA Journal Blawg 100

Readers who are interested in doing so have until August 8 to nominate their favorite law blogs for inclusion in this year's ABA Journal Blawg 100 (an annual list of the 100 best legal blogs).  The journal encourages bloggers to tell their readers about Blawg 100 and to invite them to send messages on behalf of one's blog, so consider yourself invited. You don't have to be an ABA member or based in the U.S. to participate. Further information is here

Monday, July 14, 2014

Expert Testimony and Patent Damages: Could "Hot-Tubbing" Be the Answer?

As most readers of this blog are probably aware by now, in April the U.S. Court of Appeals for the Federal Circuit reversed several of Judge Richard Posner's evidentiary rulings in Apple v. Motorola.  As I noted in the post I published shortly after the appellate court's decision came out, I wasn't all that surprised that the Federal Circuit took issue with some of Judge Posner's analysis, such as his exclusion of the testimony of one of Apple's damages experts on the ground that the expert had obtained information about the identity of a noninfringing alternative from another person associated with Apple.  To be sure, in an ideal world, a person trying to determine the objective value of an asset might be expected to seek information from a disinterested source; and Professor David McGowan, for one, has published a vigorous defense of Judge Posner's analysis on the Patently-O Blog.  Nevertheless, Judge Posner's attempt to turn this ideal into a rule of law struck may people as going beyond what the Federal Rules of Evidence at present contemplate; and, as stated, I wasn't surprised by this particular result of the appeal.  (For further analysis of the Federal Circuit opinion, see also Professor Michael Carrier's short article in the May 30, 2014 issue of Bloomberg BNA's Patent, Trademark & Copyright Law Daily, titled Apple v. Motorola:  Five Lessons for Judges in Admitting Expert Testimony, available here behind a paywall.)

The problem of having nonspecialist judges and, even more so, juries resolve technologically or economically complex factual issues has, of course, been with us for a very long time.  Judge Learned Hand, for example, lamented this phenomenon in his 1911 opinion in Parke-Davis & Co. v. H.K. Mulford & Co.,  Nowadays, although the parties make extensive use of their own expert witnesses, U.S. courts also may appoint their own experts under Federal Rule of Evidence 706.  Nevertheless, the procedure is infrequently used, though Judge Posner, for one, has on occasion made use of it.  J. Gregory Sidak, who has served as a court-appointed expert for Judge Posner, has written on the topic here; and the use of court-appointed experts is observed more frequently in some other countries, as I discuss in my book pp.228 n.37, 233 n.61, 297, 312.

Anyway, in this vein, a reader asked me a few weeks ago if I knew anything about an Australian procedure known as "hot-tubbing," and sent along a link to an article by Antonia Crooke and Louise Mallon titled Hot -tub:  Lessons from Australia.  The article describes the technique as developed in Australia, and its recent introduction into U.K. procedure:
Hot-tubbing is intended to focus on the areas of disagreement between the experts, as identified in the experts' joint statement. Where it is ordered, the procedure envisaged is as follows. Experts prepare and exchange their written reports in the normal way and meet with their opposite number to discuss their reports and prepare the joint statement, which identifies where they agree and disagree. The areas of disagreement identified in the joint statement are then used to form the basis of the agenda for the "hot-tub", which is prepared and agreed by the parties. This is provided to the judge in advance of the trial. The experts are then sworn in together at the trial and the judge initiates the discussion by asking each expert for their views. There will also be an opportunity for the experts to present and answer questions of each other. Counsel may then ask questions of each of the experts. At the end, the judge will summarise the experts' different positions on the issues and ask them to confirm or correct that summary. . . .
When concurrent evidence was first introduced as the norm in New South Wales there was some scepticism within the legal profession as to how successful it would be. However, while there are pros and cons to having experts give their evidence concurrently, the general view now is that it is a superior technique for getting to the heart of the issues in dispute and ensuring that each expert has an equal opportunity to give their evidence on those issues.
With the assistance of the University of Minnesota's Legal Research Center I have begun gathering together additional materials on the subject.  Pending completion of my review of these materials, I'll just list them here, and would appreciate hearing from readers who are aware of other materials--or who have experience with, or opinions on, the use of the procedure, particularly as it relates to patent matters (especially patent damages, to the extent it has been or could be used in that context).  I gather from some of the materials below that the procedure also has been used in Canada--and at least on a few occasions, in the U.S., which surprised me.  

Ken Anderson & Tracy Ayoderle, Note, Hot-Tubbing in Canadian Patent Litigation:  A Preliminary Assessment, 24 Intellectual Property Journal 203 (2012).

Derek Baigent, Hot tubbing expert witnesses--lessons from Australia pre-JacksonLexisNexis, Mar. 27, 2013. 

Paul Barry, Time to take the plunge?, www.journalonline.co.uk, Jan. 2011.

Sean Brannigan, 'Hot tubbing'--practical considerations, 5 Construction Law International 18 (2010). 

Martin Burns, In it together, www.newlawjournal.co.uk, Apr. 4, 2014.

Gary Edmond, Merton and the Hot Tub:  Scientific Conventions and Expert Evidence in Australian Civil Procedure, 72 Law & Contemporary Problems 159 (2009).

John Emmerig et al., Room in American Courts for an Australian Hot Tub?, JonesDay, Apr. 2013.

Graham Hain, Jackson & "hot tubbing", www.newlawjournal.co.uk, Feb. 26, 2010.

Dame Hazel Genn, Getting to the truth:  experts and judges in the "hot tub", 32 Civil Justice Quarterly 275 (2013).

James Green, Apotex Inc v. AstraZeneca inc.:  IP Experts Take the Plunge into the Hot Tub, 2012 European Intellectual Property Law Journal 874 (2012).

Steven Rares, Using the "Hot Tub"--How Concurrent Expert Evidence Aiuds Understanding Issues, available at http://www.fedcourt.gov.au/__data/assets/rtf_file/0004/21469/Rares-J-20100823.rtf.

Elizabeth Reifert, Comment, Getting into the Hot Tub:  How the United States Could Benefit from Australia's Concept of "Hot Tubbing" Expert Witnesses, 89 U. Detroit Mercy L. Rev. 103 (2011).

Mark Solon, Experts in Hot Water:  Is expert witness hot-tubbing the future?, New Law Journal 874, June 29, 2012. 

Mark Solon, In hot water?, newlawjournal.co.uk, Jan. 25, 2013.

Mark Summerfield, Federal Court Conducts Markman-Style Hearing in Hot Tub:  Britax Childcare Pty Ltd v Infa-Secure Pty Ltd [2012] FCA 467 (9 May 2012), Patentology Blog, May 12, 2012.

Lisa C. Wood,  Experts Only:  Out of the Hot Tub and into the Joint Conference, Antitrust, Fall 2007, at 89.

Lisa C. Wood, Experts in the Tub, Antitrust, Summer 2007, at 95.  

Friday, July 11, 2014

Some new papers and other materials on patent remedies

1.  Mark Lemley has published Taking the Regulatory Nature of IP Seriously:  Response to Ted Sichleman, Purging Patent Law of "Private Law" Remedies, in 92 Texas Law Review See Also 107 (2014), available here.  The abstract from the ssrn version of the paper reads:
Ted Sichelman’s paper in the Texas Law Review makes an important contribution by encouraging us to take the essentially regulatory character of IP seriously, arguing that public, not private, interest should determine remedies. In this comment, I both extend and critique his approach, suggesting that private law remedies may play an important role even in a patent system properly understood as public law rather than property law. Nonetheless, understanding the regulatory nature of patent remedies has some significant implications for setting those remedies, including the recognition that the optimal patent damages award will sometimes be $0.
Dan Burk and I each published a response to the same paper in Texas Law Review See Also a few weeks back, as I noted here.

Readers also may  be interested in reading Gene Quinn's recent interview of Mark Lemley on patent damages, on Gene's IP Watchdog blog.

2.  Samuel Chase Means has published a paper titled The Trouble with Treble Damages: Ditching Patent Law's Willful Infringement Doctrine and Enhanced Damages, 2013 U. Ill. L. Rev. 1999, available here.  Here is the abstract:
In a patent infringement lawsuit, a plaintiff often asserts a willful infringement claim and enhanced damages as a remedy. Under current U.S. patent laws, courts have the discretion to reject a claim for willful infringement and decline increasing damages, even if the jury returns a finding of willful infringement. This creates an unnecessary drain of resources on the court system and alleged infringers.
The enhanced damages provision in patent law is also often an unavailable remedy for plaintiffs even though plaintiffs almost always assert a willful infringement claim, often simply wasting courts’ and litigants’ financial resources. The enhanced damages provision also frustrates the purpose of the existence of patent laws, and patent owners actively avoid learning about new patents for fear that this knowledge will lead to allegations of willful infringement in the future. Finally, no other nation in the world has a remedy like the enhanced damages provision, and the existence of the remedy frustrates goals to harmonize global intellectual property laws.
This Note examines these issues presented by the enhanced damages provision. This Note analyzes alternatives for the enhanced damages remedy and considers whether abandoning the current law would appropriately deter patent infringement. Ultimately, this Note recommends that the entire enhanced damages provision and its associated willful infringement doctrine should be removed from the U.S. patent laws. 
3.  Matthew J. Silveira has published a short paper titled Getting to Zero--Proving a Patentee Is Entitled to No Infringement Damages After Apple v. Motorola in the July 1, 2014 issue of Bloomberg  BNA's Patent, Trademark & Copyright Law Daily (available here, behind a paywall).  From the introduction:
Much has been made of the U.S. Court of Appeals for the Federal Circuit's holdings in Apple Inc. v. Motorola, Inc., regarding the admissibility of expert damages testimony and the availability of injunctive relief for the infringement of standard essential patents. Another aspect of that decision has received less attention—the Federal Circuit's discussion of when, if ever, a patentee may be awarded no damages for patent infringement.
Although the Federal Circuit suggested that a finding of no damages will rarely be affirmed, particularly on summary judgment, it did not foreclose that result. Alleged infringers and patentees alike will need to address the court's reasoning when developing their damages theories to advocate for, or to avoid, an award of zero damages.
4. A few weeks back I listed some treatises that provide information on patent remedies in India (here).  One that I missed, and which Jorge Contreras has since called to my attention, is Kalyan Kankanala, Arun K. Narasani & Vinita Radhakrishnan, Indian Patent Law and Practice (Oxford Univ. Press 2010), chapter 10 (pp. 232-56).

5.  Recently the EPLaw Blog published a post with links to PowerPoint presentations from an April 2014 Young EPLaw Conference, including presentations on "Injunctions in the UPC" (Charles Tuffreau), and on damages in the U.K. (Laura Whiting), Belgium (Gunther Meyer), Germany (Stefan Richter), and Spain (Laura Cantero).   The slides provide a concise but useful resource on the subjects.