MEMORANDUM OPINION AND ORDER

T. JOHN WARD, District Judge.

I. INTRODUCTION

Before the Court is Mondis Technology, Ltd.'s ("Mondis") motion for supplemental damages for 2011 sales and for an ongoing royalty rate. (Dkt. No. 1.)1 The Court GRANTS-in-part and DENIES-in-part Mondis's motion. The Court awards Mondis $1,971,810 in damages for its 2011 supplemental sales that were not considered by the jury. The Court sets the ongoing royalty rate for monitors at 1.50% and the ongoing rate for televisions at 0.75%. The following pages outline the Court's reasoning.

II. BACKGROUND

On June 13, 2011, the parties picked a jury in this patent infringement case. Mondis asserted the following claims against Chimei-InnoLux Corp.'s and InnoLux Corp.'s (collectively "InnoLux" or "Defendant") accused products: claims 3, 15, and 20 of U.S. Patent No. 6,247,090 (the '090 Patent), claims 9 and 25 of U.S. Patent No. 6,513,088 (the '088 Patent), claim 18 of U.S. Patent No. 6,549,970 (the '970 Patent), claim 15 of U.S. Patent No. 7,089,342 (the '342 Patent), claims 14 and 23 of U.S. Patent No. 7,475,180 (the '180 Patent), claims 1 and 11 of U.S. Patent No. 6,057,812 (the '812 Patent), and claim 1 of U.S. Patent No. 6,639,588 (the '588 Patent).

On June 27, 2011, the jury returned a verdict. (See Jury Verdict, Case 2:07-cv-565, Dkt. No. 586.) The jury found the following claims valid and infringed: claim 15 of the '090 Patent, claim 15 of the '342 Patent, claims 14 and 23 of the '180 Patent, claims 1 and 11 of the '812 Patent, and claim 1 of the '588 Patent. The jury found the following claims invalid and also not infringed: claims 3 and 20 of the '090 Patent, claims 9 and 25 of the '088 Patent, and claim 18 of the '970 Patent. The jury found that InnoLux's accused products that it sold to the Hewlett-Packard Company ("HP") were covered under a license between HP and Hitachi (who was Mondis's predecessor-in-interest to the patents-in-suit). The jury also found that InnoLux's infringement of the '090 Patent, '342 Patent, and the '180 Patent was willful. The jury found the amount of damages to be $15,000,000.00. In the Court's Memorandum Opinion and Order regarding the parties' motions for JMOL, the Court granted JMOL that all asserted claims are infringed by InnoLux's accused products, the Court granted JMOL of no willful infringement of any of the asserted claims, and the Court otherwise upheld the jury's verdict. (Case 2:07-cv-565, Dkt. No. 662.) The Court then entered final judgment in Case Number 2:07-cv-565 in accordance with the jury's verdict and the Court's rulings on the parties' motions for JMOL. (Case 2:07-cv-565, Dkt. No. 666.)

In the final judgment, however, the Court sua sponte severed Mondis's motion for ongoing royalties and supplemental damages for its 2011 infringing sales, and this new case number was created. This issue was severed into this case because— in the event the undersigned could not resolve Mondis's motion before the undersigned retires at the end of September— the parties could have an appealable final judgment in the original case. This Memorandum Opinion and Order, however, now resolves Mondis's motion.

III. DISCUSSION

A. Supplemental Damages for 2011 First and Second Quarter Sales

When the jury awarded damages in this case, it did not have before it the sales data for the first and second quarter of 2011. "A patentee is entitled to damages for the entire period of infringement and should therefore be awarded supplemental damages for any periods of infringement not covered by the jury verdict." Datatreasury Corp. v. Wells Fargo & Co., Case No. 2:06-cv-72-DF-CE, Dkt. No. 2496, at 9 (E.D.Tex. Aug. 2, 2011). The Court holds that Mondis is entitled to supplemental damages for those two quarters of 2011, and the following analysis discusses the amount of damages Mondis is entitled.

The Court holds that the proper rate for the supplemental damages is the same rates the jury answered were applicable, which are 0.5% for monitors and 0.75% for televisions. The only issue remaining is to determine the amount of sales in the first and second quarter of 2011 to which this royalty rate will be applicable. As was the case at trial, InnoLux's sales are divided into a "U.S." spreadsheet and a "non-U.S." spreadsheet. The "non-U.S." spreadsheet refers to sales that were directly made outside the United States. However, many of those "non-U.S." sales result in the product eventually ending up in the United States, which creates liability for InnoLux. The difficult issue, as was the case at trial, is determining how many of those "non-U.S." sales resulted in the monitor ending up in the United States. After Mondis originally proposed merely treating all the "non-U.S." sales as creating liability, InnoLux stated in its response brief that "InnoLux can agree for purposes of this motion that the portion of its 2011 non-U.S. sales that end up in the U.S. can be extrapolated using Mondis's previous analysis" at trial. (Case 2:07-cv-565, Dkt. No. 644, at 6.) Mondis then accepted InnoLux's proposal. (Dkt. No. 6, at 14.) Then, days before the hearing on the issue, InnoLux attempted to retract its agreement, and provided an expert report and new analysis on the issue. (Dkt. No. 9.) At the hearing, Mondis argued InnoLux is judicially estopped.

The Court cannot hold that Mondis is judicially estopped because the Court never accepted InnoLux's position prior to it changing its position. See Source Search Techns., LLC v. LendingTree, LLC, 588 F.3d 1063, 1071 (Fed.Cir.2009) (noting that the Federal Circuit applies the law of the regional circuit for judicial estoppel); Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 293-94 (5th Cir.2004) (noting that the court must have accepted a party's prior position in order for judicial estoppel to apply in the Fifth Circuit).

The parties ignore, however, the doctrine of judicial admissions. The Fifth Circuit2 has explained judicial admissions as follows:

Martinez v. Bally's Louisiana, Inc., 244 F.3d 474, 476-77 (5th Cir.2001). The Fifth Circuit allows the treatment of statements in briefs as binding judicial admissions. City Nat'l Bank v. United States, 907 F.2d 536, 544 (5th Cir.1990). This Court considers InnoLux's admission in its response brief as a binding judicial admission of fact that the dollar amount of "non-U.S." sales that end up in the United States are $49,136,594 for monitors and $64,062,231 for televisions. The Court also accept the parties' figure for "U.S." sales, which is still in complete agreement, to be $166,570,341 for monitors and $55,041,183 for televisions. Applying the royalty rate discussed above with these sales figures results in damages in the total amount of $1,971,810. Therefore, the Court awards Mondis $1,971,810 in damages for the first and second quarter of 2011, which were not considered by the jury.

B. Ongoing Royalty Rate

The Court has carefully considered the parties positions and the applicable law with respect to the determination of an ongoing royalty rate. For the following reasons, the Court sets the ongoing royalty rate for monitors in this case to be 1.50% and the ongoing royalty rate for televisions to be 0.75%.

1. Legal Standard

The legal standard governing the Court's award of an ongoing royalty rate is not yet settled in the Federal Circuit. Prior to the Supreme Court deciding eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006), it was more common for a victorious plaintiff in a patent infringement lawsuit to merely obtain an injunction to protect its intellectual property post-suit. As Mondis states in its brief, however, "eBay. . . stripped many patent holders of their right to injunctive relief, but not the right to enforce their patents." (Dkt. No. 6, at 14.) Presently, it appears that it is now more common for plaintiffs such as Mondis, who do not obtain an injunction in light of eBay, to move the Court to set an ongoing royalty rate for post-judgment infringement of the adjudicated patents-in-suit.

Since eBay, the Federal Circuit has on at least two occasions discussed the issue of the district court setting an ongoing royalty rate. In Paice LLC v. Toyota Motor Corp., the Federal Circuit was reviewing a decision from a district court in this District that had set an ongoing royalty rate. 504 F.3d 1293 (Fed.Cir.2007). In response to an argument that a district court did not have authority to set an ongoing royalty rate, the Federal Circuit observed that "[u]nder some circumstances, awarding an ongoing royalty for patent infringement in lieu of an injunction may be appropriate." Id. at 1314. Further, the Federal Circuit stated that after allowing the parties to attempt to negotiate an agreement for an ongoing royalty rate,3 the "district court could step in to assess a reasonable royalty in light of the ongoing infringement."4 Id. at 1315. Because in Paice the district court had sua sponte imposed an ongoing royalty rate after declining to issue an injunction, the Federal Circuit remanded the case for the district court to reevaluate its rate, take additional evidence, and give more reasoning for the rate the district court had chosen. Id. Finally, the Federal Circuit in Paice concluded that "Paice's argument [fell] far short of demonstrating" that it was entitled to a jury trial to determine the amount of an ongoing royalty rate. Id. at 1315-16.

In Amado v. Microsoft Corp., the Federal Circuit briefly addressed its decision in Paice and the issue of ongoing royalties in the context of a district court's award of damages for infringing sales during the stay of a permanent injunction. 517 F.3d 1353 (Fed.Cir.2008). The Federal Circuit rejected Microsoft's argument that the reasonable royalty rate for post-verdict infringement should be limited to the reasonable royalty rate that the jury found for the pre-verdict infringement. The court stated that "[t]here is a fundamental difference, however, between a reasonable royalty for pre-verdict infringement and damages for post-verdict infringement." Id. at 1361. The Federal Circuit then discussed the district court's determination of a royalty rate for the sales that took place after the grant of the injunction that was stayed.

These two Federal Circuit cases have certainly provided some guidelines for the district courts. However, other than noting that the determination of an ongoing royalty rate is up to the district court's discretion,5 the Federal Circuit has not announced a particular standard to be used in calculating an ongoing royalty rate. In this District, there have been at least two recent cases that have performed a detailed analysis to determine an ongoing royalty rate.

In Affinity Labs of Tex., LLC v. BMW North Am., LLC, the court first performed a post-verdict Georgia-Pacific6 analysis for the ongoing reasonable royalty rate. 783 F.Supp.2d 891, 898-901 (E.D.Tex. 2011). The court in Affinity Labs used the jury's finding of the pre-judgment reasonable royalty rate as a "starting point" in its analysis under Georgia-Pacific. Id. at 899-900. After calculating how the post-trial reasonable royalty rate under Georgia-Pacific would be adjusted from the jury's pre-judgment royalty rate, the court then considered "whether, and by how much, this reasonable `market' royalty should be increased to account for the fact that ongoing infringement will be willful." Id. at 898. The court then considered the factors from Read Corp. v. Portec, Inc.7 to determine how much to enhance the royalty rate. In Datatreasury Corp. v. Wells Fargo & Co., the court also began the analysis of an ongoing royalty rate by conducting a post-verdict Georgia-Pacific analysis. Case No. 2:06-cv-72-DF-CE, Dkt. No. 2496 (E.D.Tex. Aug. 2, 2011). The court in Datatreasury used the "jury verdict as a valuable guide" and additionally increased the proper royalty rate based on the defendant's "status as an adjudicated infringer." Id. at 32-33. The court considered that the parties' changed post-judgment status was also due to the fact that the defendant was a willful infringer going forward. Id. at 12-14. Although the court considered this implicitly in Georgia-Pacific factor 15 instead of performing a Read Corp. v. Portec, Inc. analysis like Affinity Labs, the court noted that it would have reached the same result if it had performed a Read Corp. v. Portec, Inc. analysis. Id. at 33 n. 3. Therefore, Datatreasury's analysis of the ongoing royalty rate is effectively the same as Affinity Labs.

In light of this case law, the Court will proceed by first determining a post-judgment reasonable (ongoing) royalty rate under Georgia-Pacific and will use the jury's verdict in this case as a starting point and determine how the circumstances may have changed. Then the Court will consider whether the ongoing infringement will be willful. If so, the Court will consider how much to enhance the damages in light of this willful infringement.

2. Georgia-Pacific Post-Trial Analysis

The Court first performs this Georgia-Pacific analysis assuming that InnoLux's continued infringement is not willful and thus not considering the changed legal relationship between the parties as a result of InnoLux's status as an adjudicated infringer. The Court will consider willfulness in the next section. In light of this assumption of no willful infringement, under the facts of this case, the Court holds that the ongoing reasonable royalty rate will be 0.75% for monitors under solely Georgia-Pacific framework.

In determining a reasonable royalty rate, a consideration of the Georgia-Pacific factors is proper. Those factors include:

Georgia-Pacific, 318 F.Supp. at 1120.

The parties make various arguments regarding the application of the Georgia-Pacific factors. Because the Court is using the jury's determination of a 0.5% royalty rate for monitors as a starting point,8 the Court focuses on any new evidence that was not before the jury and additionally any changed circumstances (other than willfulness) between a hypothetical negotiation that occurred in 2005 (which the jury determined) and a hypothetical negotiation that would occur in 2011 after the judgment (which this Court is determining). The parties have essentially presented to the Court no new evidence that was not already before the jury. For example, there are no new licenses that the parties have presented consideration,9 and to the extent the jury's verdict might be considered a "new license," it is already accounted for because the Court is using the jury's verdict as a starting point. Rather, the parties mainly argue how the negotiation in 2011 changes the analysis because the jury's hypothetical negotiation occurred in 2005.

With respect to factor one, Mondis argues this factor weighs in favor of the rate being higher in 2011. Mondis basically points to all the licenses it has entered into since 2005 and provides no argument that was not already heard by the jury. InnoLux argues the evidence has not changed since the jury made its determination. InnoLux misses the point, however, because although there is no new evidence, this does not change the fact that the evidence may be weighed differently for a 2005 negotiation than a 2011 negotiation. The Court is not convinced, however, that this factor would be weighed any differently. The licenses themselves are the same. And although Mondis has been more successful in its licensing efforts since 2005, that is a more proper consideration for other factors such as 8-10. Therefore, factor one remains unchanged from the jury verdict.

With respect to factor seven, the parties argue that since the patents have a shorter term from a 2011 negotiation, this affects the analysis. Mondis argues it would increase the rate and InnoLux argues it would decrease the rate. In this Court's view, it has not been provided sufficient evidence to conclude that this fact changes the analysis either way.

One issue that InnoLux argues affects several factors, such as factor 3, 8, 9, and 10, is the fact that the jury's invalidity findings have reduced the scope of the required license. That is, because the jury found nearly half the claims invalid, and because jury assumed infringement and validity for the purposes of the hypothetical negotiation, InnoLux argues this warrants a reduction in the reasonable royalty rate. Specifically, InnoLux states that "[f]or the hypothetical negotiation, it was assumed that all asserted claims were valid. But in view of the jury's verdict, this assumption has been proven wrong." (Dkt. No. 9, at 9.) The Court finds that InnoLux's argument is without merit. The Court never instructed the jury how they should proceed in the event they find that some claims are valid and some are not. The Court also never instructed the jury that they should consider all claims valid and infringed, regardless of their findings of infringement and validity, if they reach the question of damages and perform a hypothetical negotiation. The Court did, however, instruct the parties that they should only reach the question of damages if the jury finds infringement and validity as to at least one claim. Consequently, the jury clearly understood that Mondis is only entitled to damages if there is infringement and validity. The most reasonable assumption, therefore, is that the jury assumed infringement and validity only with respect to those claims that the jury actually found infringed and valid. This perhaps explains why the jury may have given a 0.5% royalty rate when even Defendant InnoLux was practically arguing for a rate of 1.0% at trial.

On the other hand, the Court primarily agrees with Mondis's argument that factors 8-10 weigh in favor of increasing the reasonable royalty rate determined by the jury. With respect to these factors, Mondis points out that as opposed to 2005, the patented technology in 2011 has proven to be more of a commercial success. This is evidenced at least in part by Mondis having entered into over fifteen licenses in the industry. In 2005, Mondis had not yet had near the success in licensing that it now has in 2011. Therefore, this changed position in 2011 warrants an increase from the jury's determination, which was made for a 2005 hypothetical negotiation.

Finally, the Court considers factor 15, which addresses, among other things, the bargaining position of the parties. Mondis argues that in light of the fact that InnoLux is now an adjudicated infringer, the parties bargaining positions have drastically changed since 2005. Mondis states that the comparable licenses in this case "were all taken under uncertainty with respect to liability . . . [and] [i]t is absurd to posit that Mondis would license InnoLux for less than these other licensees who did the right thing and took an early license." (Dkt. No. 6, at 8.) The problem with Mondis's argument is that it made the same argument to the jury in this case, and the jury presumably considered that in its verdict. Furthermore, when the jury determined damages based on a hypothetical negotiation in 2005, it also assumed that validity and infringement for those claims it found to be valid and infringed. Therefore, InnoLux's status as an adjudicated infringer (aside from potentially willfulness) has not changed the parties' bargaining position with respect to the 2005 hypothetical negotiation as compared to the post-judgment negotiation.10 Accordingly, the Court holds that this factor has not changed since the jury verdict.

Considering the factors as a whole, as compared to the jury's 2005 hypothetical negotiation that resulted in a royalty rate of 0.5% for monitors, the Court holds that, in a post-judgment negotiation, some factors weigh in favor of a higher royalty rate and no factors weigh in favor of decreasing the royalty rate. After conducting the post-judgment hypothetical negotiation, the Court concludes that the reasonable royalty rate should be 0.75% for monitors. The Court now determines if this rate should be enhanced for willful infringement.

3. Ongoing Infringement After Judgment Is Willful in This Case

The Court holds that ongoing infringement by InnoLux is willful. Other courts in this District have come to similar conclusions for post-judgment infringement by a defendant. In Affinity Labs, the court stated that "[f]ollowing a jury verdict and entry of judgment of infringement and no invalidity, a defendant's continued infringement will be willful absent very unusual circumstances." Affinity Labs, 783 F.Supp.2d at 899. See also Datatreasury, at 12-14 (finding that ongoing infringement is willful). Even InnoLux does not dispute that ongoing infringement will eventually be considered willful; rather, InnoLux argues that the ongoing infringement should only be considered willful after InnoLux has exhausted its appellate rights. Essentially, InnoLux argues that it has not been proven that its appellate defenses are objectively reckless, and therefore, it should not be liable for willful infringement until if and when those defenses are rejected on appeal. For at least three reasons, the Court disagrees with InnoLux and holds that InnoLux's continued infringement is willful despite its potential appeal.

First, in this Court's view, this Court is not in a proper position to evaluate the merits of InnoLux's appeal, which would essentially be required if the Court accepts InnoLux's position. The court in Datatreasury recognized this point and stated that "[b]ecause the ongoing royalty rate can be appealed together with the findings of infringement and no invalidity, the Court finds no reason to discount the royalty rate based on the possible outcome of an appeal." Datatreasury, at 14. Rather, the Federal Circuit is in a better position to evaluate the merits of the appeal—that is the Federal Circuit's role. This Court does not know exactly what issues InnoLux will appeal and does not have the advantage of hearing the arguments on appeal, unlike the Federal Circuit. Therefore, in this Court's view, the Federal Circuit can determine whether InnoLux should be considered a willful infringer in the period from the date of judgment to the date the appellate decision is rendered.11 If the Federal Circuit disagrees with this Court's finding of ongoing willful infringement after hearing the appeal, then it can reverse on that issue.

Second, assuming arguendo that it is this Court's duty to evaluate the strength of InnoLux's appeal (before the appeal is filed), the Court holds that a potential appeal by InnoLux does not have sufficient merit to warrant finding that its continued infringement despite the judgment is not objectively reckless. As an initial matter, it is obviously this Court's opinion that InnoLux will not be successful on appeal, or the Court would have otherwise ruled in InnoLux's favor on various post-trial issues.12 Although, as noted above, this Court is neither aware of what exactly InnoLux will be appealing nor its arguments on appeal, the Court can generally assume it will likely be issues of claim construction, infringement, and/or validity.13

Speaking generally, claim construction issues are good candidates for appeal given the de novo standard of review. The Court is not aware of any particularly close claim construction disputes that may have been dispositive, and the Court is not aware of what particular terms InnoLux might appeal. InnoLux may view the Court's lack of a construction of "communication controller" (after InnoLux's agreement that the term needs no construction) to be an issue of claim construction (see, e.g., Case 2:07-cv-565, Dkt. No. 568), but this Court disagrees. The Court did not refuse to re-construe "communication controller" based on principles of claim construction; rather, the Court refused to re-construe "communication controller" based on the doctrine of judicial estoppel.14 The Federal Circuit applies the law of the regional circuit for issues of judicial estoppel, and the Fifth Circuit reviews a holding under the doctrine of judicial estoppel under an abuse of discretion standard, which is a high standard for InnoLux to overcome. See In re Texas Wyoming Drilling, Inc., 647 F.3d 547, 550 (5th Cir.2011) ("[B]ecause judicial estoppel is an equitable doctrine, and the decision whether to invoke it [is] within the court's discretion, we review for abuse of discretion the lower court's decision to invoke it.") (internal cites and quotes omitted); Source Search Techns., LLC v. LendingTree, LLC, 588 F.3d 1063, 1071 (Fed. Cir.2009) ("Whether judicial estoppel applies is a matter of regional circuit law.").

In addition, InnoLux's appellate positions for infringement and validity appear to potentially be even weaker. InnoLux has nearly conceded infringement, given the Court's unwillingness to re-construe "communication controller," which, as discussed above, will be reviewed for abuse of discretion. Further, InnoLux has a high burden of proof by clear and convincing evidence for invalidity, and the Court's denial of InnoLux's JMOL of invalidity is reviewed under a standard that is not favorable to InnoLux.15 Therefore, the Court concludes that a potential appeal by InnoLux lacks sufficient merit to find that its continued infringement, despite the judgment, is not objectively reckless.

Finally, the third reason the Court disagrees with InnoLux is because this Court agrees with the court in Affinity Labs that absent unusual circumstances, a defendant's continued infringement after it is an adjudicated infringer is willful—even before appeal. That is certainly true in this case. The jury found InnoLux liable for willful infringement on several claims. The Court only granted InnoLux's motion for JMOL of no willful infringement because there was no evidence of pre-suit notice for the claims the jury found were willfully infringed, and additionally, the Court found InnoLux was not objectively reckless. For InnoLux's ongoing infringement, notice is not an issue.16 The only issue now is whether InnoLux's ongoing infringement, prior to the resolution of an appeal, is objectively reckless under In re Seagate Tech., LLC, 497 F.3d 1360, 1371 (Fed.Cir.2007). The Court holds that it is. InnoLux would have the Court effectively adopt a standard that a party is not a willful infringer until after it has resolved all its rights on appeal and has lost. Implicit in this argument is InnoLux's obvious lack of respect for the jury's verdict or this Court's judgment.17 Furthermore, InnoLux's position is contrary to the common law usage of willfulness, which was explicitly adopted by In re Seagate. Id. at 1370-71. As the Federal Circuit stated in In re Seagate, it adopted the Supreme Court's meaning of willfulness that comported "with the common law usage, which treated actions in `reckless disregard' of the law as `willful' violations." Id. (internal cites and quotes omitted). The term "reckless" does not represent the most stringent mental state in the law. Mental states such as "knowingly" or "intentionally" are considered higher. However, if after InnoLux exhausts its appellate rights it is still found to be an adjudicated infringer, by continuing to infringe, InnoLux would more accurately be considered to be acting "knowingly" or "intentionally" in disregard of the law (i.e., after appeals are exhausted, there is no uncertainty). But if InnoLux's position was the law, it would not be considered in reckless disregard of the law until that same time, which would effectively be conflating the standard of reckless with knowingly or intentional. In this Court's view, it would be more proper to consider it "reckless" to continue infringement after a jury verdict and judgment of infringement. In other words, the Federal Circuit explicitly stated that a person is reckless if it acts "in the face of an unjustified high risk of harm that is either known or so obvious that it should be known." Id. at 1371. And this Court holds that absent unusual circumstances that are not before this Court, a defendant is acting in the face of an unjustifiable high risk of harm if it continues to infringe in light of a jury verdict and judgment of infringement. Further, InnoLux does not cite any cases that state that in order for InnoLux's conduct to be willful Mondis must show by clear and convincing evidence that InnoLux's defenses on appeal are objectively baseless.18 As a result, the Court holds that InnoLux's ongoing infringement is willful and enhancement is warranted.

4. Enhancement for Ongoing Willful Infringement

As a result, the Court now determines how much to enhance based on willful infringement.19 Ordinarily, a district court determines the amount to enhance damages for willful infringement by considering the factors from Read Corp. v. Portec, Inc., 970 F.2d 816, 827 (Fed.Cir. 1992). These factors include: (1) deliberate copying; (2) infringer's investigation and good-faith belief of invalidity or non-infringement; (3) litigation conduct; (4) infringer's size and financial condition; (5) closeness of the case; (6) duration of the misconduct; (7) remedial action by the infringer; (8) infringer's motivation for harm; and (9) concealment. Id. Both parties agree that these are the factors the Court should apply if it is determining the amount to enhance damages for willful infringement. Furthermore, the court in Affinity Labs applied these factors. Affinity Labs, 783 F.Supp.2d at 901-04. In this Court's view, many of these factors are not well-suited for analyzing future willful infringement, as the factors were designed to analyze a party's willful infringement in the past. For example, it is nearly impossible to determine the "duration of the misconduct," "litigation misconduct," or "remedial action" that will occur in the future. Therefore, the Court will consider those factors it finds applicable, and the Court will also consider, as Read Corp. noted, the principle these factors are designed to encompass. That is, "[t]he paramount determination in deciding to grant enhancement and the amount thereof is the egregiousness of the defendant's conduct based on all the facts and circumstances." Read Corp., 970 F.2d at 826.

In applying the factors, the Court holds that factors two and five weigh in favor of a strong enhancement, and all other factors are either not relevant or are not of significant weight considering the circumstances. As discussed at length above, given the judgment of infringement and validity, the Court holds that InnoLux does not have a good-faith belief of invalidity or noninfringement and that the case is not close. In addition, because the paramount determination is the egregiousness of InnoLux's conduct, the Court considers InnoLux's corporate attitude, which is reflected by its CEO's statement to a Chinese newspaper after the verdict in this case, which reads in part: "The issue of patent infringement is being taken too seriously sometimes." (See "Chimei to Postpone Chinese Fab Investment," The China Post, June 29, 2011, at 5.) The Court finds that this statement by InnoLux's CEO shows InnoLux's lack of respect for this Court and the jury's verdict. It is also an affront to the United States patent system—a system of Constitutional origin. The Court, therefore, finds that this also warrants a strong enhancement because it further reflects the egregiousness of InnoLux's conduct. In accordance, the Court holds that the earlier calculated reasonable royalty rate of 0.75% should be doubled to account for enhancement due to willfulness. This enhancement reflects the egregiousness of InnoLux's continued infringement while also considering that it could be worse, for example, if there was evidence that InnoLux had copied or if InnoLux was a competitor and was seeking to harm Mondis. As a result, the ongoing royalty rate for monitors20 is set at 1.50%.

IV. CONCLUSION

In conclusion, the Court GRANTS-in-part and DENIES-in-part Mondis's motion for supplemental damages for 2011 sales and for an ongoing royalty rate. (Dkt. No. 1.) The Court awards Mondis $1,971,810 in damages for its 2011 supplemental sales that were not considered by the jury. The Court sets the ongoing royalty rate for monitors at 1.50% and the ongoing rate for televisions at 0.75%. The Clerk of the Court is Ordered to CLOSE this case.

It is so ORDERED.

MEMORANDUM OPINION AND ORDER ON RECONSIDERATION

Before the Court is Defendants Chimei InnoLux Corp. and InnoLux Corp. (collectively "InnoLux") Motion to Reconsider Order Regarding Mondis' Motion for Supplemental Damages and an Ongoing Royalty (Dkt. No. 13.) Having considered the parties' written submissions and the arguments of counsel, the Court DENIES the motion.

I. Background

Mondis Technology Ltd. ("Mondis") filed this patent infringement case on December 31, 2007. On June 27, 2011, the jury entered a verdict in favor of Mondis, awarding $15,000,000 in damages for past infringement. (2:07-cv-565, Dkt. No. 586.) Because the jury had only been presented with damages data through the end of 2010, Mondis moved on August 4, 2011 for an award of supplemental damages for InnoLux's infringing sales between January 1, 2011 and the June 27, 2011 verdict. (2:07-cv-565, Dkt. No. 631.) In the same motion, Mondis moved for an enhanced royalty rate for InnoLux's anticipated post-verdict willful infringement. Id.

As part of its Amended Final Judgment in the 2:07-cv-565 case, the Court sua sponte severed Mondis' motion for supplemental damages and an enhanced ongoing royalty rate, and ordered the Clerk of the Court to open a new case number for this motion. (2:07-cv-565, Dkt. No. 666.) As a result, the Clerk opened this case, No. 2:11-cv-378. The parties further briefed the specific issues to be dealt with in this case, and a hearing was held on September 15, 2011. On the same day that he retired from the bench (September 30, 2011), Judge Ward issued an Order on the issues of supplemental damages and ongoing royalties. (Dkt. No. 11.)

In the portion of that Order addressing enhanced damages related to ongoing infringement, Judge Ward considered each of the conventional Read factors: (1) deliberate copying; (2) infringer's investigation and good-faith belief of invalidity or non-infringement; (3) litigation conduct; (4) infringer's size and financial situation; (5) closeness of the case; (6) duration of the misconduct; (7) remedial action by the infringer; (8) infringer's motivation for harm; and (9) concealment. Read Corp. v. Portec, Inc., 970 F.2d 816, 827 (Fed.Cir. 1992). Judge Ward noted that "many of these factors are not well-suited for analyzing future willful infringement, as the factors were designed to analyze a party's willful infringement in the past," but he nonetheless determined that factors two and five weighed in favor of strong enhancement of damages, and that all other factors were not relevant or not worthy of significant weight considering the circumstances. (Dkt. No. 11, at 20.)

In addition to the conventional Read factors, Judge Ward also took into account "InnoLux's corporate attitude, which is reflected by its CEO's statements to a Chinese newspaper after the verdict in this case," to determine the appropriate amount of enhanced damages. Id., at 21. The newspaper article quotes Dr. Tuan as stating that "[t]he issue of patent infringement is being taken too seriously sometimes." Id. (citing "Chimei to Postpone Chinese Fab Investment," The China Post, June 29, 2011, at 5) (the "China Post article"). Judge Ward found that Dr. Tuan's statement "is an affront to the United States patent system—a system of Constitutional origin," and that it, in addition to his analysis of the Read factors, warranted a strong enhancement of damages. Id. Accordingly, Judge Ward enhanced the previously calculated reasonable royalty rate of 0.75% to 1.50% to reflect "the egregiousness of InnoLux's continued infringement. . ." Id., at 21.

Through the Motion now pending before the Court, InnoLux asks this Court to reconsider Judge Ward's determination of ongoing damages and to provide relief under Federal Rule of Civil Procedure 60(b) because: (1) Judge Ward's opinion was based on inadmissible hearsay (e.g., the newspaper article); (2) the hearsay was inadvertently admitted due to miscommunication, and (3) if any statement is to be considered, it should be the complete statement now available before the Court." (Dkt. No. 13, at 6.)

II. Legal Standard

A party may request relief from a court order pursuant to Fed.R.Civ.P. 60(b), which recites in relevant part: "[o]n motion and upon such terms as are just, the court may relieve a party or party's legal representatives from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect . . . (6) any other reason that justifies relief." Fed. R.Civ.P. 60(b). The motion must be made "within a reasonable time . . . and for reasons (1), (2) and (3) no more than a year after date of entry of the judgment or order." Id. "Implicit in the fact that Rule 60(b)(1) affords extraordinary relief is the requirement that the movant make a sufficient showing of unusual or unique circumstances justifying the relief." Pryor v. U.S. Postal Serv., 769 F.2d 281, 286 (5th Cir.1985). Rule 60(b)(6) is a "catch-all provision, meant to encompass circumstances not covered by Rule 60(b)'s other enumerated provisions." Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir.2002). As such, a Rule 60(b)(6) motion "will be granted only if extraordinary circumstances are present." Id.

III. Discussion

InnoLux argues that: (1) the newspaper article quoting Dr. Tuan should not have been considered by Judge Ward because it is inadmissible hearsay; (2) miscommunication contributed to the improper admission of the hearsay article; and (3) that the article misquoted InnoLux's CEO, and that if any statement should be considered, it should be a complete statement that InnoLux obtained from the recording of the newspaper's interview with Dr. Tuan. (Dkt. No. 13.)

Mondis responds that (1) InnoLux adopted Dr. Tuan's statement and knowingly waived any objections to the admissibility of the quoted portions of the article on hearsay grounds; (2) Rule 60(b) does not provide relief where InnoLux's counsel failed to timely object to the admission of evidence; and (3) even if the Court were to credit InnoLux's late hearsay objection, there is no basis for disturbing Judge Ward's enhanced damages award. (Dkt. No. 16.)

A. Judge Ward's Admission of the China Post Article Does Not Warrant the Extraordinary Relief Provided for Under Fed.R.Civ.P. 60(b)

On June 29, 2011, two days after the jury returned its damages verdict and finding of willful infringement, the China Post published the newspaper article with the following quote from Dr. Tuan: "The issue of patent infringement is being taken too seriously sometimes." See China Post Article at 5. On August 4, 2011, Mondis submitted the China Post article to the Court in connection with briefing on supplemental damages, and Mondis moved for admission of the article at the September 15, 2011 hearing on supplemental damages. (Dkt. No. 16, at 1.) InnoLux did not object to the admission of this article in its written submissions to the Court, and InnoLux also failed to object on hearsay grounds at the post-trial hearing on ongoing royalties, even after Mondis expressly moved to have the article admitted into evidence. (2:07-cv-565, 9/15/2011 Tr. at 27:8-9.) When asked by the Court if InnoLux had any objection to the admission of the article, InnoLux objected on foundation grounds, but did not object to the introduction of the newspaper article on hearsay grounds. Id., at 27:18-21 (". . . I don't think it's proper from a foundational standpoint, for Mr. Spiro to talk about what might have been the intention or understanding of InnoLux's management."). Judge Ward pressed the issue, and asked InnoLux's counsel "insofar as the statement, you don't dispute that that's what he said." Id., 27:22-23 (emphasis added). InnoLux's counsel stated that Judge Ward was correct.1

InnoLux has a significant burden in justifying the "extraordinary" relief sought under Rule 60(b)(1). See Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 357 (5th Cir.1993) ("In fact, a court would abuse its discretion if it were to reopen a case under Rule 60(b)(1) when the reason asserted justifying relief is on attributable solely to counsel's carelessness with or misapprehension of the law or the applicable rules of court.); Blinder, Robinson & Co., Inc. v. United States SEC, 748 F.2d 1415, 1420 (10th Cir.1984) ("Even assuming that [plaintiff's] attorney's failure to object to the allegedly improper evidence was due solely to the negligence of their counsel rather than to deliberate litigation strategy, this would not constitute a sufficient showing to warrant the extraordinary relief sought.") In light of this burden, the Court concludes that, based on the parties' arguments and the evidence of record, InnoLux's counsel made a conscious and knowing admission regarding the admissibility of the quotation from the China Post article, and such admission is therefore binding on InnoLux. See Martinez v. Bailey's La., Inc., 244 F.3d 474, 476 (5th Cir.2001) (finding that attorney's arguments made during the course of trial were judicial admissions).

To the extent that InnoLux argues that the Court committed a legal "mistake," such "mistake" is only correctable via a Rule 60(b) motion where the legal mistake involves "a fundamental misconception of the law or a conflict with a clear statutory mandate." In re Grimland, Inc., 243 F.3d 228, 233 (5th Cir.2001); McMillan v. MBank Fort Worth, N.A., 4 F.3d 362, 367 (5th Cir.1993) (finding that plaintiff's claim of "mere legal error" did not warrant Rule 60(b)(1) relief). Here, Judge Ward's ruling did not constitute "a fundamental misconception of the law" because InnoLux failed to object on hearsay grounds. See United States v. Gresham, 585 F.2d 103, 106 (5th Cir.1978) ("since this evidence, through hearsay, came in without objection, `it is to be considered and given its natural probative effect as if it were admissible.'") (quoting Daniel v. United States, 234 F.2d 102, 107 (5th Cir. 1956)).

Accordingly, the Court find that the requested relief under Rule 60(b)(1) is not warranted in this case because InnoLux's counsel failed to timely object to the admission of the China Post article. With regard to Rule 60(b)(6), InnoLux has also failed to show how InnoLux's counsel's failure to object to the admission of the China Post article constitutes an "extraordinary circumstance" justifying relief under the catch-all provision of Rule 60(b).

B. Even if the China Post Article Were Inadmissible, and the Court Were to Credit InnoLux's Late Hearsay Objection, there would be no Basis to Disturb the Enhanced Damages Award

Judge Ward considered each of the Read factors regarding enhanced damages and determined that "factors two and five weigh in favor of a strong enhancement." (Dkt. No. 11, at 20.) There is nothing in Judge Ward's Opinion to indicate that Dr. Tuan's statement in the China Post article factored into the Court's analysis of any of the Read factors. Therefore, even before considering the China Post article, Judge Ward concluded that a "strong enhancement" of damages based on willful infringement was justified. And while it's clear that Judge Ward did place some reliance on Dr. Tuan's statement, there is nothing before the Court to demonstrate that the doubling of the post-verdict royalty rate was outside the Court's discretion based on Judge Ward's analysis of the Read factors alone. See Read Corp., 970 F.2d at 826 ("An award of enhanced damages for infringement, as well as the extent of the enhancement, is committed to the discretion of the trial court."), abrogated on other grounds by Markman v. Westview Instruments, Inc., 52 F.3d 967, 975 (Fed.Cir.1996) (en banc); DataTreasury Corp. v. Wells Fargo & Co., No. 2:06-cv-72, Dkt. No. 2496 at 12 (E.D.Tex. Aug. 2, 2011) ("Although the Court has not enhanced the supplemental damages . . ., the ongoing royalty analysis can take into account that because [the Defendant] is an adjudged infringer, infringement going forward would likely be willful."); QPSX Devs. 5 Pty Ltd. v. Nortel Networks, Inc., 2:05-cv-268, 2008 WL 728201, *2 (E.D.Tex. Mar. 18, 2008) (applying multiplier of 1.7 to the jury's award in light of defendant's willful infringement with three of the nine Read factors weighing in favor of enhancement).

IV. Conclusion

InnoLux has failed to demonstrate that it is entitled to the "extraordinary" relief provided for by Rule 60(b). The record is clear that InnoLux's counsel failed to raise a timely objection to the China Post article on hearsay grounds, thereby waiving it, and, even if the China Post article were excluded, Judge Ward was within his discretion to enhance damages based solely upon his analysis of the Read factors. Therefore, InnoLux's Motion to Reconsider Order Regarding Mondis' Motion for Supplemental Damages and Ongoing Royalty is DENIED.

So ORDERED.