Wednesday, November 27, 2013

Punitive damages for patent infringement in the UK?

As I note in my book (pp. 209-10), the Patents Court in Catnic Components Ltd. v. Hill & Smith, [1983] F.S.R. 512, 540, held that exemplary (punitive) damages are not available for patent infringement in the U.K. The court reasoned that, even though it believed the defendant's conduct fell within one of the categories that generally can justify an award of exemplary damages under Rookes v. Barnard,  [1964] A.C. 1129 (H.L.) (opinion of Lord Devlin) (specifically, cases "in which the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff . . . Where a defendant with a cynical disregard for a plaintiff's right has calculated that the money to be made out of his wrongdoing will probably exceed the damages at risk"), Lord Devlin was speaking only of cases in which exemplary damages had been awarded, not recognizing a more general category of cases in which exemplary damages could be awarded.  In other words, the class of cases in which such damages may be awarded was limited to those in which exemplary damages had been awarded in the past, and that did not include patent infringement cases.  See Catnic, [1983] F.S.R. at 541 ("In my judgment, the claim to exemplary damages is not open to the plaintiffs in the absence of any authority that exemplary damages had been awarded for infringement of patent prior to the decision of the House of Lords in Rookes v. Barnard.").  

As pointed out in AIPPI United Kingdom Group, Report Q186:  Punitive Damages as a Contentious Issue of Intellectual Property Rights, available here the House of Lord subsequently rejected that interpretation of Rookes v. Barnard in Kuddus v. Chief Constable of Leicestershire Constabulary, [2001] U.K.H.L. 29.  Exemplary damages are not limited to cases in which they had been awarded prior to 1964.  At least in theory, then, punitive damages could be awarded in a patent case.  See also Nicolas van Zeebroek & Stuart J.H. Graham, Comparing Patent Litigation Across Europe:  A First Look (Sept. 8, 2011), at 24 (indicating that exemplary damages are available "sometimes" in the U.K.), available here.   Nevertheless, the authors of the AIPPI Report state that they are aware of no cases in which a court in the U.K. has awarded exemplary damages for patent infringement, and they do not favor such awards; among other things, they note the availability of awards of defendant's profits as an adequate alternative in a case in which those profits exceed the patentee's loss.  (The report is undated, but I believe it's from 2005.  I am not aware of any subsequent cases in the U.K. awarding exemplary damages for patent infringement.)  But at least in theory, it appears that punitive damages could be awarded under the applicable law, and perhaps someday we will see such a case.

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I'll be taking the rest of the week off for the Thanksgiving holiday.  Best wishes to my U.S. readers for the long holiday weekend.

Monday, November 25, 2013

Bray on Declaratory Judgments

Professor Samuel Bray has a paper on ssrn titled The Myth of the Mild Declaratory Judgment. Here is the link and here is the abstract:
When plaintiffs in an American court seek prospective relief, they usually request an injunction, a declaratory judgment, or both. The fact that plaintiffs often choose between these remedies, or decide to seek both together, raises an obvious question. What is the difference between them? The standard answer is that the declaratory judgment is milder and the injunction is stronger. This “mildness thesis” has been endorsed by the Supreme Court, the Restatement (Second) of Judgments, and many legal scholars. Three rationales have been given for why the declaratory judgment is milder, each focused on something the declaratory judgment is said to lack: a command to the parties, a sanction for disobedience, and full issue-preclusive effect. This Article critiques the mildness thesis, showing how these rationales cannot be squared with the way the declaratory judgment and the injunction are actually used.

This Article also offers an alternative account of the relationship between the declaratory judgment and the injunction. In many contexts these remedies are substitutes, but they are not always perfect substitutes. This Article therefore explores the conditions under which each remedy has a comparative advantage when used prospectively. Central to this account is management: the injunction has, and the declaratory judgment lacks, a number of features that allow a court to conveniently and efficiently manage the parties. There is also a difference in timing: the declaratory judgment is sometimes available at an earlier stage of a dispute. The argument developed here has implications not only for remedies but also for other areas of law, including justiciability and fee-shifting.
This is a very interesting article, and makes some persuasive points about the relationship between declaratory judgments and injunctions.  A few of the things the author says about patents, however, strike me as questionable.  In particular, the author refers three times to an example under which an inventor wants to launch a product but is concerned that it might infringe someone else's patent, and therefore seeks a declaratory judgment first.  At pp. 29-30, Professor Bray writes:
If the inventor makes the wrong choice—in either direction—there will be costs, both private costs and public costs. If she manufactures an infringing product, the costs include her risk of treble damages for patent infringement as well as the public and private costs of a patent-infringement trial. If she decides not to manufacture a product that a court would have found to be non-infringing, then she will lose the profits that would have covered the cost of this invention and subsidized other inventions—with the potentially tragic outcome for the public of reduced innovation. She has no viable intermediate options and must choose one of the roads: she will or will not make the product. A declaratory judgment is able to liquidate this uncertainty—it lets you litigate before you leap.
Similarly, at pp. 48-49:
Yet it is hard to define this stage in the lifecycle of a dispute where only the declaratory judgment is available. In many disputes this stage will never even exist. When it does exist, it is tenuous and transitory. For instance, in the patent scenario either party can choose to end it: the inventor, by manufacturing and distributing the product, thus allowing a suit for damages by the patent-holder; or the patent-holder, by explicitly threatening to immediately sue for infringement, thus allowing a suit for injunction by the inventor.
And at p.52:
Recall the example of a dispute over whether a patent is valid. The inventor must choose:  either begin production (which means risking treble damages for patent infringement), or forgo bringing the invention to market (which means risking lost profits). Assume that at this point the inventor is seeking venture capital funding and is not yet ready to begin production, much less distribution to retailers. Both sides would of course be happy to have an injunction—the patent-holder would like one prohibiting the inventor from producing the product, and the inventor would like one prohibiting the patent-holder from suing for patent infringement. But both injunctions would be premature, given the imminence requirement, because the inventor is not yet ready to make the product. Even so, private and public costs may already be accruing from the legal uncertainty, the sort of costs that the theory of the declaratory judgment suggests it was meant to avoid.
As I said, I find much of the article persuasive, but I'm puzzled by the above examples involving patents.  First of all, the assumption that the patent owner would necessarily exclude the prospective infringer/inventor from the market if the patent in suit is valid and infringed is not necessarily true; the patent owner may find it in his or her interest to license instead.  Second, I'm not sure there really are very many cases in which the prospective inventor/infringer (1) is not yet using the purportedly patented technology, so that the patentee could not yet sue (see article p.17 n.76, "The question considered here is the remedy before there has been infringement. A much larger literature exists on remedies after infringement, where the choice is usually between an injunction and damages"), and (2) would be allowed to file a declaratory judgment action.  (Even in the Hatch-Waxman context, the patentee has a special exception that permits a suit for "technical infringement.")  Third, I don't know what to make of the  author's reference to the inventor (here, the potential infringer) having a claim for an injunction against the patent holder if the patent is invalid or not infringed.  There is no cause of action that I can see, unless the prospective patent infringement suit would be a sham.   Fourth, it might have been useful to acknowledge that in patent law one function of declaratory judgments is forum selection:  the prospective infringer would like to go first so as to select the forum for an inevitable patent infringement suit.  That said, the author is clear that he's talking about declaratory judgments that might be available before the patent owner would be able to sue for infringement (but see my second point above).  Fifth, as further support for his thesis that a declaratory judgment is not necessarily a "milder" remedy than an injunction, he might have noted that, following a final nonappealable judgment of invalidity the USPTO will cancel the patent in suit.  See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1429 (Fed. Cir. 1988). To my knowledge, that rule applies even if the judgment is only a declaratory judgment.

Friday, November 22, 2013

Friday Miscellany: FRAND, SEPs, Injunctions, Infringer's Profits, and more

1.  Elyse Dorsey and Matthew R. McGuire have published  How the Google consent order alters the process and outcomes of FRAND Bargaining,  20 Geo. Mason L. Rev. 979 (2013).  The article can be downloaded, here.  The authors express skepticism over the FTC's Google consent order, requiring Google to forgo injunctive relief for FRAND-encumbered SEPs, subject to some exceptions.  I'm not sure I disagree--I've expressed skepticism over the use of antitrust law (including section 5 of the FTC Act) to achieve this result, and would prefer to resolve it as a matter of patent law instead.  I part company, however, with the authors' downplaying the seriousness of patent holdup and their assertion that "law and economics theory . . . recognizes that strong patent rights are essential to fostering innovation and to maximizing dynamic efficiency."   (As far as law and economics theory is concerned, in my view the jury it still out.  There certainly isn't much if any empirical evidence that patents play much of a role in fostering innovation in the IT sector.) 

2.  Yongwook Paik and Fong Zhu have a paper up on ssrn titled The Impact of Patent Wars on Firm Strategy:  Evidence from the Global Market.  The link is here.  Here is the abstract: 
We examine how patent wars affect firm strategy. We hypothesize that, as patent wars intensify, firms shift their business foci to markets with weak intellectual property (IP) protection due to increased litigation risks. This shift is attenuated for firms with stronger technological capabilities, and is more pronounced for firms whose home markets have weak IP systems. Using data from the global smartphone market, we find support for these hypotheses. Interestingly, we also find that the patent war intended to hamper the growth of the Android platform may have merely shifted the sales to weak IP countries. This study sheds light on the emerging patent enforcement strategy literature by highlighting the heterogeneity in the efficacy of national patent systems in explaining firm strategy in platform-based markets. 
3.  On the Kluwer Patent Blog, Anders Valentin has a write-up on a recent Danish Supreme Court decision reversing the grant of a preliminary injunction against Actavis.  The case involved a process patent, and the court held that even in the context of a preliminary injunction proceeding, the patent holder can make use of the presumption that shifts the burden to the defendant to show that its product was not made by the patented process.  However, in this particular case, the court concluded that the defendant successfully rebutted the presumption.

4. I mentioned recently that Phillip Johnson had published an article titled 'Damages' in European Law and the Traditional Accounts of Profits in 3 Queen Mary J. Intell. Prop. 296 (2013).  I've now had a chance to read the article.  One question the author raises is whether the remedy of infringer's profits under the 2004 Enforcement Directive is or can be the same as an award of profits under English law.   Mostly a doctrinal piece, the paper doesn't engage the underlying policy issues, e.g., what principles should be used to apportion profits, etc., but is helpful in pointing out the doctrinal issues that courts are likely to confront in the years to come.

5.  This is a few weeks old now, but Michael McManus had an interesting post on Patently-O titled Section 337 Caseload and Win Rate Revert to Norms.  As most readers are probably aware, the U.S. ITC provides a parallel forum for litigating some patent infringement disputes, and can award only injunction-type remedies, not damages.  For previous discussion on this blog, see, e,g., this post from last May.

6.  Professor Jeffrey Harrison and I just published a new casebook, titled Law and Economics:  Positive, Normative and Behavioral Perspectives (West Publishing 3d ed. 2013).  There is a tiny bit about I.P. remedies at the very end of the book.  Here is the description:
This casebook examines the application of economic reasoning to law, including the underlying assumptions of the economic approach. It begins by describing the basic tools of economic analysis, including the Coase Theorem. It provides a critical examination of the strengths and limitations of economic analysis as applied to contracts, torts, criminal law, antitrust, and intellectual property. The goal is to enable students to understand how economics can illuminate the behavioral assumptions and trade-offs implicit in many legal doctrines, how it may assist in improving the law, and how the economic approach compares with social justice and other perspectives.
For further information, see here.

7.  At the invitation of the Federalist Society, I also participated in a podcast yesterday titled "Patent Re-Reform in Congress," with Jim Copland of the Manhattan Institute and NYU Professor Richard Epstein. The podcast can be downloaded free of charge here.  One of the issues presented in some of the pending bills is whether to make it easier for prevailing parties in U.S. patent infringement litigation to recover attorneys' fees.

Thursday, November 21, 2013

Jury awards $290 million in Apple v. Samsung damages retrial

I would be remiss not to report on this, even though at this point I have nothing new or different to add to what's already been said.  Foss Patents has a detailed writeup here, including a copy of the jury verdict form, and detailed background on the retrial here.  Shara Tibken of CNET has two interesting stories, here and here.  The damages retrial involved 13 products and five patents (U.S. Patent Nos. 7,469,381, 7,844,915, and 7,864,163, and U.S. Design Patent Nos. D604,305 and D618,677).

Wednesday, November 20, 2013

Interesting Lost Profits Question in Apple v. Samsung Damages Retrial

Florian Mueller had an interesting post this past weekend on a question that arose in the Apple v. Samsung damages retrial taking place before Judge Koh in the Northern District of California.  To understand the question, two things are important. 

First, under U.S. law, the patent owner is entitled to lost profits only if it can establish but-for causation, e.g., that it would have earned lost $2 million if the defendant had not infringed, but in reality it earned $1 million, so it is entitled to recover $2 million - $ 1 million = $1 million.  As part of this analysis, if there was a noninfringing alternative available to the defendant that would have enabled the defendant to make just as many sales as it is made using the infringing component or process, the plaintiff hasn't really lost any profits, because in the absence of infringement the plaintiff still would have earned only $1 million.  The plaintiff should recover only a reasonable royalty for the unauthorized use of the patented invention.  (If the patented invention had no advantages over the noninfringing alternative, however, e.g., it didn't provide any cost savings over the alternative, as a matter of economic logic that royalty also should be zero, though whether the courts would agree on this point remains to be seen.  The other alternative, if a design patent is at issue, is to award the plaintiff the defendant's profit from infringing sales.  U.S. law is dysfunctional on this issue, however, because it awards the entire profit rather than just the profit attributable to the infringing design, which (again) on these hypothetical facts could be at or near zero.  See this post.)

Second, however, a patentee who markets products embodying his patent can recover damages only for infringing conduct that occurs after he has provided the requisite notice by (1) commencing an infringement action against the defendant; or (2) providing actual, specific notice of the infringement, prior to the filing of the lawsuit; or (3) providing constructive notice by means of patent marking, as set forth in Patent Act § 287(a).  See Roger D. Blair & Thomas F. Cotter, Strict Liability and Its Alternatives in Patent Law, 17 Berkeley Tech. L.J. 799, 802-03 (2002).  For more on patent marking rules in the U.S. and elsewhere, see this post.

Anyway, according to Mr. Mueller:
The district court agreed with Samsung that Apple's claim of lost profits due to Samsung's infringement must be based on the assumption that Samsung's designaround efforts would have started when infringement began, not when Apple notified it of its infringement claims. On this basis, Apple can seek lost profits only with respect to the '915 pinch-to-zoom API patent, but not with respect to four other patents (two design patents, the rubber-banding '381 patent, and the tap-to-zoom-and-navigate '163 patent) that Samsung would have hypothetically worked around even before it had notice, i.e., before the relevant damages period.
Mr. Mueller argues that this an illogical choice, and that it would have made more sense to rule either that (1) the noninfringing alternative was available from the beginning of the infringement, in which case there are no lost profits at all, or (2) the design-around effort would have begun only after Samsung received notice of the infringement, in which case Apple would be entitled to lost profits only for the period of the design-around (whatever that is for the relevant patent).  The least logical assumption is that Samsung would have started infringing and immediately starting working on a design-around before receiving notice of infringement. 

This is an interesting theoretical question, and here’s the way I would approach it.  Suppose that on Day 1, Infringer has two design choices for a specific component, A and B.  Either one will result in the same number of sales.  Infringer chooses A, which turns out to be infringing.  Infringer starts selling products on Day 2.  If Infringer could have deployed B on Day 2 and made the same number of sales as it made using A, Patentee is entitled to no lost profits.  Of course, in the real world, once you’ve chosen A or B and begun making products using that component, it might not be possible to turn to the alternative immediately.  Let’s say it would take a month to retool your facilities to begin using B instead of A, once you have started using A.  In that scenario, the Infringer had no alternative to A during that one-month period.  Nevertheless, on these facts, I think the better rule is that the patentee still isn’t entitled to any lost profits, because the noninfringing alternative was available as of the date the infringement started.

Now suppose that on Day 1 Infringer has two design choices, A and B, either of which (once implemented) will result in the same number of sales on, say, a monthly basis.  Infringer can start making products using A on Day 2, but if Infringer opts for B the product launch will be delayed by a month.  If Infringer chooses A, the patent owner is entitled to lost profits for that one-month period during which there was no alternative to A.  But for the infringement, Infringer would not have entered the market on Day 1 but rather on, say, Day 31.  Of course, if Infringer was not put on actual or constructive notice until after Day 31, it’s all a moot point anyway, because the patent owner can’t recover any damages at all for that pre-notice period.

To the extent Judge Koh’s ruling is consistent with scenario 2, it makes sense to me.  To the extent the factual underpinning is something more like scenario 1, however, I agree with Mr. Mueller that the ruling doesn’t seem logical.  In neither scenario would I assume the hypothetical design-around begins on the date of actual or constructive notice.  In my view, the rules concerning patent notice serve the purpose of cutting off damages claims that occur prior to the date of notice but shouldn’t be read as providing any insights into how damages are calculated for the period for which they are available.  

Monday, November 18, 2013

Federal Circuit Partially Vacates Judge Koh's Order Denying Apple's Motion for a Permanent Injunction Against Samsung

In an appeal arising from Judge Koh's December 2012 order denying Apple's request for a permanent injunction against Samsung, following the high-profile August 2012 jury verdict in Apple's favor, Judge Prost writing for the panel (1) affirms Judge Koh's ruling denying a permanent injunction with respect to Samsung's infringement of three design patents and its dilution of Apple's trade dress; and (2) vacates the portion of the ruling denying a permanent injunction with respect to the three utility patents.  The opinion can be downloaded from here.  My previous write-up on the case following oral argument in August 2013 is here.

The principal issues were (1) whether Judge Koh was correct to require proof of a causal nexus between Samsung's infringement and Apple's (established) loss of market share and downstream sales to Samsung, and (2) if so whether she correctly applied the "causal nexus" concept.  (The "causal nexus" requirement itself comes from two previous Federal Circuit decisions on preliminary injunctions, referred to in the opinion as Apple I and Apple II).  On the first issue, the Federal Circuit says yes:  "the district court was correct to require a showing of some causal nexus between Samsung's infringement and the alleged harm to Apple as part of the showing of irreparable harm."  The court rejected Apple's argument that "causal nexus" is an "unprecedented fifth requirement," and reaffirms that "causal nexus . . . is part of the irreparable harm factor."  On the second issue, however, the court "agree[s] with Apple that certain of the standards arguably articulated by the district court go too far."  Specifically:
First, the district court appears to have required Apple to show that one of the patented features is the sole reason consumers purchased Samsung’s products. . . .

It is true that Apple must “show that the infringing feature drives consumer demand for the accused product.” Apple II, 695 F.3d at 1375. It is also true that this inquiry should focus on the importance of the claimed invention in the context of the accused product, and not just the importance, in general, of features of the same type as the claimed invention. . . .  However, these principles do not mean Apple must show that a patented feature is the one and only reason for consumer demand. Consumer preferences are too complex—and the principles of equity are too flexible—for that to be the correct standard. Indeed, such a rigid standard could, in practice, amount to a categorical rule barring injunctive relief in most cases involving multi-function products, in contravention of eBay.

Thus, rather than show that a patented feature is the exclusive reason for consumer demand, Apple must show some connection between the patented feature and demand for Samsung’s products. There might be a variety of ways to make this required showing, for example, with evidence that a patented feature is one of several features that cause consumers to make their purchasing decisions.  It might also be shown with evidence that the inclusion of a patented feature makes a product significantly more desirable. Conversely, it might be shown with evidence that the absence of a patented feature would make a product significantly less desirable. . . .

The second principle on which we disagree with the district court is its wholesale rejection of Apple’s attempt to aggregate patents for purposes of analyzing irreparable harm.

While it is true that this court analyzed causal nexus on a patent-by-patent basis in Apple I, we did not mean to foreclose viewing patents in the aggregate. Rather, we believe there may be circumstances where it is logical and equitable to view patents in the aggregate. For example, it may make sense to view patents in the aggregate where they all relate to the same technology or where they combine to make a product significantly more valuable.  To hold otherwise could lead to perverse situations such as a patentee being unable to obtain an injunction against the infringement of multiple patents covering different—but when combined, all—aspects of the same technology, even though the technology as a whole drives demand for the infringing product.
Applying these rules, the court concluded that Judge Koh did not abuse her discretion in finding no causal nexus between the design patent infringement and Apple's harm; but that she must reconsider the matter with respect to three utility patents.  (The court agreed with Judge Koh that there was no evidence Samsung would resume the trade dress dilution, and affirmed the denial of an injunction with respect to those rights on that ground.) With regard to the utility patents, the court wasn't swayed by Apple's survey evidence that "ease of use, in general, is important to the iPhone" or that Samsung copied.  This evidence, though relevant, wasn't enough by itself to show causal nexus.  But the court did find evidence in the form of a conjoint survey potentially more probative:
Dr. Hauser’s survey purports to show that consumers would be willing to pay fairly significant price premiums for the features claimed in Apple’s utility patents. In rejecting Dr. Hauser’s survey evidence, the district court stated that “evidence of the price premium over the base price Samsung consumers are willing to pay for the patented features is not the same as evidence that consumers will buy a Samsung phone instead of an Apple phone because it contains the feature.” Id. (emphasis added) (internal quotation marks omitted). As we have already discussed above, however, a showing of causal nexus does not require this level of proof. Rather, there may be a variety of ways to show
that a feature drives demand, including with evidence that a feature significantly increases the desirability of a product incorporating that feature. Moreover, we see no reason why, as a general matter of economics, evidence that a patented feature significantly increases the price of a product cannot be used to show that the feature drives demand for the product. This is not to suggest that consumers’ willingness to pay a nominal amount for an infringing feature will establish a causal nexus. For example, consumers’ willingness to pay an additional $10 for an infringing cup holder in a $20,000 car does not demonstrate that the cup holder drives demand for the car. The question becomes one of degree, to be evaluated by the district court. Here, the district court never reached that inquiry because it viewed Dr. Hauser’s survey evidence as irrelevant. That was an abuse of discretion.
As an alternative ground for affirmance, Samsung argues that there are other methodological flaws with Dr. Hauser’s survey. However, the district court did not base its decision on any such alleged flaws, and we believe it is more appropriate for the district court to addresses these arguments in the first instance. . . .
Moving on to the second eBay factor, adequacy of a remedy at law, the court says:
one of the two reasons the district court found this factor to weigh in favor of Samsung was Samsung’s ability to pay any monetary judgment. However, unlike an infringer’s inability to pay a judgment, which may demonstrate the inadequacy of damages, see Bosch, 659 F.3d at 1155-56, a defendant’s ability to pay a judgment does not defeat a claim that an award of damages would be an inadequate remedy. Rather, a defendant’s ability to pay merely indicates that a court should look to other considerations to determine whether a damages award will adequately compensate the patentee for the harm caused by continuing infringement.

We therefore turn to the district court’s other reason for finding that this factor weighed in favor of Samsung—Apple’s past licensing behavior. We have previously explained that:
While the fact that a patentee has previously chosen to license the patent may indicate that a reasonable royalty does compensate for an infringement, that is but one factor for the district court to consider. The fact of the grant of previous licenses, the identity of the past licensees, the experience in the market since the licenses were granted, and the identity of the new infringer all may affect the district court’s discretionary decision concerning whether a reasonable royalty from an infringer constitutes damages adequate to compensate for the infringement.

Acumed, 551 F.3d at 1328. Consistent with Acumed, we find no error in the district court’s decision to consider evidence of Apple’s past licensing behavior. However, the court erred by ending its analysis upon concluding that the asserted patents are not “priceless” and that Samsung is not “off limits” as a licensing partner. While perhaps relevant, these findings, by themselves, do not fully answer the question at hand—i.e., whether monetary damages will adequately compensate Apple for Samsung’s infringement of the particular patents at issue in this lawsuit. Rather, they merely show that Apple is willing to license the asserted utility patents in some circumstances, and that Apple is willing to license some patents to Samsung. . . .

In sum, the district court abused its discretion by failing to properly analyze whether damages would adequately compensate Apple for Samsung’s infringement of these patents. Accordingly, we vacate the district court’s finding with respect to this factor and remand for further consideration. Of course, if, on remand, Apple cannot demonstrate that demand for Samsung’s products is driven by the infringing features, then Apple’s reliance on lost market share and downstream sales to demonstrate the inadequacy of damages will be substantially undermined.
Finally, the court concluded that Judge Koh did not abuse her discretion in finding that the balance of hardships factor was neutral, or that the public interest weighed against an injunction.  On the public interest factor in particular, the court approved of Judge Koh's consideration of "the scope of  Apple’s requested injunction relative to the scope of the patented features and the prospect that an injunction
would have the effect of depriving the public of access to a large number of non-infringing features."
So what should we take away from all of this?  One point is that it is now clear that the Federal Circuit does not read eBay so literally as to require proof of all four of the eBay factors, but rather will apply something more like a traditional equitable analysis involving a balancing of factors.  This is a sensible approach, in my view.  Another is that causal nexus is here to stay, but it shouldn't be quite as difficult to satisfy as Judge Koh thought.  Again, this might be a reasonable compromise, because applied too rigorously causal nexus could result in dispensing with injunctions in an overly broad range of cases. Third, I think the court is right to say that merely because a patentee has licensed its patents on some occasions to some parties doesn't necessarily mean that monetary damages would always be an adequate remedy.  A fourth point to note is the court's possible receptivity to the use of conjoint analysis--though perhaps we shouldn't read too much into this, since Judge Koh still needs to consider the admissibility of Dr. Hauser's analysis.  (For further discuss on conjoint analysis, see here.)  

Fifth, notice a distinction between what it means to "drive demand" for purposes of causal nexus, versus what it means to "drive demand" for purposes of the entire market value rule.  According to the Federal Circuit, courts may apply the entire market value rule (that is, use the entire market value of an end product as the royalty base) only when “the patented feature drives the demand for an entire multi-component product. . . .” See LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51, 67 (Fed. Cir. 2012) (emphasis added).  It's fair to say that the Federal Circuit wants the entire market value rule to remain the exception, not the rule; as the court says in LaserDynamics:
It is not enough to merely show that the disc discrimination method is viewed as valuable, important, or even essential to the use of the laptop computer. Nor is it enough to show that a laptop computer without an ODD practicing the disc discrimination method would be commercially unviable. Were this sufficient, a plethora of features of a laptop computer could be deemed to drive demand for the entire product. To name a few, a high resolution screen, responsive keyboard, fast wireless network receiver, and extended-life battery are all in a sense important or essential features to a laptop computer; take away one of these features and consumers are unlikely to select such a laptop computer in the marketplace. But proof that consumers would not want a laptop computer without such features is not tantamount to proof that any one of those features alone drives the market for laptop computers. Put another way, if given a choice between two otherwise equivalent laptop computers, only one of which practices optical disc discrimination, proof that consumers would choose the laptop computer having the disc discrimination functionality says nothing as to whether the presence of that functionality is what motivates consumers to buy a laptop computer in the first place. It is this latter and higher degree of proof that must exist to support an entire market value rule theory.
On the other hand, the "causal nexus" aspect of irreparable harm shouldn't be (and isn't) quite that difficult to sustain.  In Apple, Judge Prost writes:
. . . a battery does not necessarily drive demand for a laptop computer simply because its removal would render the laptop ineffective as a portable computer. See Apple II, 695 F.3d at 1376. That is because consumers often do not choose a laptop based on its battery, and presumably at this point, no inventor has a patent covering all laptop batteries. Nevertheless, it is indisputable that the ability to carry around a computer without having to plug it in is one of the reasons people buy laptops. Thus, if the first person to invent a laptop battery had obtained a patent covering all laptop batteries, then it would be reasonable to say that the patented invention was a driver of demand for laptops. And if a particular patented laptop battery lasts significantly longer than any other battery on the market, then the replacement of that battery with a noninfringing battery might make a laptop less desirable. In that case, it might be reasonable to conclude that the patented battery is a driver of consumer demand for the laptop.
Using the court's example, it may be reasonable to conclude that a battery is a driver of consumer demand (sufficient for causal nexus) but not the driver of consumer demand (sufficient to trigger the entire market value rule).