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Re: OT: Amicus Curiae Brief on VRNG, submitted by Boston Law FirmIt is a nice read, but funny how they conclude that you should do exactly what VirnetX is arguing should not be necessary because Congress and their intent says it is impossible. >>>Conclusion In sum, the lengthy discussion in VirnetX revolves around two rules. First, apportion from the royalty base all value associated with nonpatented features (put another way, isolate the value of the patented features).<<< En Banc Request >>>Congress was fully aware of this disgorgement and reasonable royalty case law. And faced with this legal framework, it explicitly sought to avoid an exacting apportionment standard, deeming even approximate apportionment to be impossible.2 Accordingly, Congress removed disgorgement (and its corresponding apportionment demands) in favor of the reasonable royalty remedy and its reliance on general sources of proof<<< And, of course, the foot note, where Congressmen pull no punches on their opinion of how difficult it is to apportion. >>>2 See H.R. Rep No. 1587, 79th Cong., 2d. Sess. 1 (Feb. 19, 1946) (“[I]t is impossible to apportion profits due to the [patented] improvement.”); 92 Cong. Rec. 9188 (1946) (statement of Sen. Pepper) (stating that “experience [had] proven that it is [so difficult to apportion an infringer’s profits] that there is almost always an interminable delay in connection with the recovery sought.”); Hearings on H.R. 5231 (later reported H.R. 5311), HEARING BEFORE H. COMM. ON PATENTS, 79th Cong. 2d Sess. 2-3 (1946) (remarks of Rep. Henry) (“[I]t is absolutely impossible to apportion the profits due to the invention.”); see also Georgia-Pacific Corp. v. United States Plywood Corp., 243 F. Supp. 500, 525-26 (S.D.N.Y. 1965) (noting removal of profit disgorgement was made “in light of the grave concern . . . over the problems of apportionment.”). <<< |
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