Transfer Pricing Associates

Decision: Whistserve, LLC v. Computer Packages, Inc.

post Thursday January 17, 2013


The recent decision made by the United States Federal Circuit court regarding the Whistserve, LLC v. Computer Packages, Inc., case appears to continue the many changes that are sweeping across the intellectual property law landscape. It is clear that with the Whitserve decision that there will be yet another modification to the procedures and precedents that have been established through litigation.

In the decision, the court dismissed an $8 million damages award. The application of 25 % rule of thumb, which was presented by experts from both sides of this court case, was not the central point of contention in the view of the court. Where the harshest criticism fell was on the expert, who testified on behalf of the plaintiff, for applying the 25% rule on the alleged infringer’s profits, and consequently the expert applied the Georgia-Pacificfactors in a cavalier manner that the court strongly disagreed with. Additionally, the court disapproved of the expert’s use of uncomparable, lump-sum licenses. His final conclusion was described by the court as “out of line with economic reality.”

Beyond the individual changes for the Whistserve, LLC v. Computer Packages, Inc. case, it appears that there are continued changes for IP legal battles to come. As the Georgia-Pacificfactors were so easily dismissed, it is likely an early signal that these lists of analysis and factors will be soon ignored or deemed useless. Each of these changes are leading towards a general distancing from rules of thumb and certain lists of factors to be considered. As the interpretations and opinions of courts continue to change the rules of the game will continue to evolve.

Source: IP ValueWire

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