Patent misuse claim will not be tried to a jury; damages are limited
Cordance Corporation v. Amazon.Com, Inc. and Amazon Web Services, LLC, Civil Action No. 06-491a-MPT, July 28, 2009.
Thynge, M.J. Patent misuse shall be tried and determined by the Court and Plaintiff’s claim for damages of the patent-in-suit begins on the date of correction by the PTO.
The Court considers two pretrial issues. First, patent misuse will be tried to the Court and not to the jury, in part so as not to further burden the jury already saddled with the “Einsteinian analysis and Herculean task” of responding to a 14-page jury verdict form with 20 questions containing over 160 subparts. Second, post-lawsuit filing PTO claim correction does not apply retroactively to patent infringement causes of action arising prior to the correction by the PTO. Because plaintiff has only asserted claims based on the corrected patent, and because the patent was corrected by the PTO after the filing of the lawsuit, plaintiff’s request for damages due to any infringement is limited to the PTO date of correction and thereafter.
