Exploring Patent Damages: Gino Cheng Discusses the Federal Circuit’s Brumfield Decision at FRONTEO’s IP Webinar

Winston & Strawn partner Gino Cheng presented during FRONTEO’s Intellectual Property webinar, “Update: Revisiting Damages Under U.S. Patents for Foreign Conduct,” on September 25, 2024.

The discussion explored the trajectory of patent infringement liability under 35 U.S.C. § 271(a) and § 271(f) and the Federal Circuit’s recent decision in Brumfield v. IBG.

In 2015, the Federal Circuit ruled that patent infringement liability under 35 U.S.C. § 271(f) for exports couldn’t exceed that for domestic infringement under § 271(a), denying lost foreign profits to a patentee. The U.S. Supreme Court overturned this in its 2018 WesternGeco II decision, allowing for the recovery of lost foreign profits. Recently, in the Brumfield decision (March 27, 2024), the Federal Circuit sought to expand damages under § 271(a) to match those under § 271(f), with the patentee claiming nearly one billion dollars for foreign use. Will this lead to a Supreme Court petition in November?

Watch the Webinar

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• Part 1
• Part 2

Read Winston’s summary and analysis of the Brumfield decision here. 

Learn more about Winston’s Patent Litigation Practice.