Question
Estimate damages for lost operating profit for years 3 through 5 from margin erosion as of June 30th , year 6, which is the estimated
Estimate damages for lost operating profit for years 3 through 5 from margin erosion as of June 30th , year 6, which is the estimated date of the completion of the patent infringement trial. This question is from the Texahoma Highway Construction case
COMPENSATION DAMAGE FOR PATENT INFRINGEMENT(TEXAHOMA HIGHWAY CONSTRUCTION CASE)
Texahoma highway is fast growing state in the american southwest. The fast growing make it necessary for the texahouse state development of highway to construct new highway and widden existing highway.
the DOH carries out highway construction by mean of competitive bidding by qualified highway construction companies.
One of the qualified highway constructin companies in salsa inc. salsa has developed and registered a patent for containing noise by highway construction. This noise is very loud , and DOH has to pay compensation to homeowner and business located near highway construction projects .The salsa patent effectively contains construction noise, and significantly lowers the amount of compensatin paid by DOH to the home - owner and business distributed by the din of highway construction The salsa patent is fr a containing wall that is built on both side of a highway under construction. the containg wall is 16 feet high,and consist of reinforced concrete posts that are grooved to accept concrete panels with matching tongues.
Starting on 30 june,year 3 , some contractor won highway contract by infringing the salsa patent . Each time ,salsa sent lawyers letters to the infringers to cease and desist .but none of these letter had any effect . in order to protect its patent rights, salsa was compelled to sue the infringers. Salsa sued the infringers ceased by December 31, of year 5. After the defendants field their response , there were the usual written interrogatories , depositions of the expert witness and pretrail motions. The trail was scheduled to begin on june 1 , year 6 and was expected to end june 30 , 6 year.therefore the damage awarded by the court would be payable on 30 june year 6, so salsa,would not recover osts profit for year 3 through 5 until june 30 year6,
Salsa lawyer to prepare its study to be filed with the court , For this engagement you hae hgathered the following informatin
SALSA income statement all figures in $'000 ,except per square foot and percentage.
GROSS
COST GROSS PROFIT %SG&A*PRETAX
YEAR | revenue of sales | profit of sales | expense | profit | ||
-4 | $ 21,193 | 18387 | 2806 | 13.2% | 1217 | 1598 |
-3 | $15,878 | 14586 | 1292 | 8.1% | 1096 | 196 |
-2 | $14,471 | 12880 | 1591 | 11.0% | 1200 | 391 |
-1 | $12,056 | 10928 | 1128 | 9.4% | 1081 | 47 |
0 | 9706 | 8593 | 1113 | 11.5% | 1251 | -138 |
1 | 14386 | 13137 | 1249 | 8.7% | 1166 | 83 |
2 | 16220 | 13857 | 2363 | 14.6% | 1022 | 1341 |
3 | 9091 | 8424 | 667 | 7.3% | 1061 | -394 |
4 | 3248 | 2792 | 456 | 14% | 1018 | -562 |
5 | 7761 | 6894 | 867 | 11.2% | 1123 | -256 |
total | 124,010 | 110,478 | 13532 | 10.9% | 11235 | 2297 |
*SE&A = Selling , General and administrative
NOTE all values are in $ except %
Salsa Income statements all figures in $'000, except per square foot and (Continued) percantages.
Noisewall
year | revenue | cost profit | profit% | square foot | ||
-4 | ||||||
-3 | ||||||
-2 | ||||||
-1 | ||||||
0 | ||||||
1 | ||||||
2 | ||||||
3 | 987 | 648 | 339 | 34.3% | 59 | 16.73 |
4 | 493 | 393 | 100 | 20.3% | 37 | 13.32 |
5 | 732 | 587 | 145 | 19.8% | 13.07 | |
total | 2212 |
the salsa year noisewall revenue from a texahoma highway contract awarded on FEB 12,YEAR 3
CONTRACT WITH INFRINGING NOISEWALL AL FIGURE IN '000 EXCEPT %.
DATE | CONTRACT | REVENUE | DIRECT COST | PROFIT | PROFIT% | REVENUE |
6/29/03 | 20204 | $38371 | 33965 | $4406 | 11.5% | $3931 |
12/30/03 | 20788 | 107063 | 97702 | 9361 | 8.7% | 10373 |
1/02/04 | 20877 | 33398 | 30001 | 3397 | 10.2% | 3489 |
6/02/04 | 21215 | 38576 | 34867 | 3709 | 9.6% | 3977 |
1/03/05 | 21321 | 678690 | 600560 | 78130 | 11.5% | 70982 |
896098 | 797095 | 99003 | 11.0% | 92752 |
NOISEWALL
DATE | CONTRACT | COST | PROFIT | PROFIT% | FEET SQUARE | FOOT |
6/29/03 | 20204 | 3293 | 638 | 16.2% | 301 | 13.06 |
12/30/03 | 20788 | 8183 | 2190 | 21.1% | 801 | 12.95 |
1/02/04 | 20877 | 2731 | 758 | 21.7% | 262 | 13.32 |
6/02/04 | 21215 | 3281 | 696 | 17.5% | 302 | 13.17 |
1/03/05 | 21321 | 56421 | 14561 | 20.5% | 5214 | 13.61 |
73909 | 18843 | 20.3% | 6880 | 13.48 |
Note: Any damages awareded at trail for loss profits are subject to taxation. Therefore when calculating damages, you need to do so on a before-tax basis. Salsa cost of equity since year 2 has been 16%, and cost of long-term debt since year 2 has been 12%.
Salsa's tax rate is 35%. Salsa capital structure is 60% equity and 40% debt.
The purpose of compensotory damages is to put the paintiff back into the same financial position that would have been the case if no infringement has taken place. so calculation of compensatory damages requires an estimate of what did not actually happen because infrigement prevented it from occurring? We can use information from periods before infringement occurred, because those periods were unaffected by infringement. This known as "before and after method".
The law on patent infringement allow recovery of damages for lost profits on convoyed sales. Convoyed sales are usually sold along with the infringed product
For Example:- Sales of desktop computers are usually accompanied by sales of computer monitor and printers.That make sales of computer monitors and printers conveyed sales of desktop computers .by the same token covoyed sales for cellphones and sales of car chargers ,erapieces and belt clips for cell phones. This approach is known as "Entire maket value"
The panduit 1 test for lost profit by reason of patent infringebenefit requires the plaintiff to show folowing condition:-
- There is demand for the patented product
- Accepted non infringing substitutes for the patented product for available
- there is sufficient manufacturing and marketing capability to satisfy the demand.
- there is reasonable computaion of the profit that would have been earned,but fot the infringement of the patented product.
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