Court Discretion
Judges have some discretion in awarding damages. They may apply that discretion in an effort to improve the reliability of a damages calculation.
A judge, however, may choose between reasonable alternative accounting methods for determining the amount of lost profits or may adopt in its discretion a reasonable way to determine the number of infringing units. Such subsidiary choices are left to the court's sound discretion under our precedent.
— Smithkline Diagnostics v. Helena Laboratories, 926 F. 2d 1161, fn. 2 (Fed. Cir. 1991).
The court may choose a royalty figure that is not championed by either party in a case.
A district court is not limited to selecting one or the other of the specific royalty figures urged by counsel as reasonable. Radio Steel & Mfg. Co., 788 F.2d at 1556-57, 229 USPQ at 433 (approving of the district court's use of its "own independent judgment" in rejecting the parties reasonable royalty figures of 2% and 21%, and instead awarding a 10% reasonable royalty).
— Smithkline Diagnostics v. Helena Laboratories, 926 F. 2d 1161, 1168 (Fed. Cir. 1991).
The court's discretion has limits. If a patentee proves validity and infringement, they are entitled to at least a reasonable royalty.
Dow does not appeal the district court's exclusion of its expert's reasonable royalty testimony. Rather Dow urges that reasonable royalty damages can be awarded even without such testimony; that there is a presumption of damages where infringement has been established; and that there is other evidence in the record, including the evidence supporting Perc's excluded opinions, that the district court must consider. We agree.
— Dow Chemical Co. v. Mee Industries, Inc., 341 F. 3d 1370, 1381 (Fed. Cir. 2003).
The court cannot deny damages that a patentee proves. For example, a patentee is entitled to lost profits when it seeks and proves those lost profits are available.
More particularly, we reject an interpretation of our precedent holding that a judge has "discretion" to choose the "methodology" in determining an award to mean that the judge may choose between basing an award on "lost profits" damages or on a reasonable royalty. That is not choosing methodology. If a winning patentee seeks and proves lost profits, he is entitled to an award reflecting that amount.
— Smithkline Diagnostics v. Helena Laboratories, 926 F. 2d 1161, fn. 2 (Fed. Cir. 1991).