- Failure to Mitigate Damages: Part of the “general theory of damages,” is that “a victim has a duty ‘to use such means as are reasonable under the circumstances to avoid or minimize the damages’ that result from violations of” a the statute. … If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if damages could reasonably have been mitigated no award against a liable employer should reward a plaintiff for what her own efforts could have avoided.” Faragher (U.S. 06/26/1998) (creating partial affirmative defense for employer’s vicarious liability for a supervisor harassing an employee). E.g., failure to mark, laying in wait to allow damages to increase, failing to take a clear position on scope of claims or changing one’s position, keeping secret an already licensed supplier of the patented technology, failure to offer a FRAND license when obligated to do, etc. “It is entirely appropriate for a defendant to assert a defense of failure to mitigate damages when considering what amount of compensation is appropriate for Plaintiff, the injured party in this action. Such a defense may rarely be relevant in a patent infringement case, but it is not inappropriate.” IMX v. E-Loan, 1-09-cv-20965 (S.D. Fla. November 1, 2010, Order) (denying dismissal of this affirmative defense in a patent infringement suit). But see Romag Fasteners, Inc. v. Fossil, Inc. 29 F. Supp. 3rd 85 (D. Conn. 2014) (rejecting this theory when “reasonable royalty” sought). “Under California law, ‘[a] plaintiff has a duty to mitigate damages and cannot recover losses it could have avoided through reasonable efforts.’ Thrifty-Tel, Inc. v. Bezenek, 54 Cal. Rptr. 2d 468, 474 (Ct. App. 1996) [trespass to chattels case for hacking phone system; plaintiff failed to call child’s parent].” Bank of Stockton (9th 02/14/10). Interplan Architects, Inc. v. C.L. Thomas, Inc., No. 4:08-cv-03181, 2010 U.S. Dist. LEXIS 114306, at *147-48 (S.D. Tex. Oct. 27, 2010) (failure to mitigate damages is recognized as a defense in a copyright infringement case). Highly likely needs to be pled as an affirmative defense. See also Microsoft (Motorola) (9th Cir. 07/30/15) (awarding expenses incurred taking reasonable mitigation efforts to minimize damages from a breach of contract); see generally SCA Hygiene III (U.S. 03/21/2017) (7-1) (“‘[p]atent law is governed by the same common-law principles, methods of statutory interpretation, and procedural rules as other areas of civillitigation.’”); Mentor Graphics (Fed. Cir. 03/16/17) (“Compensatory damages are a staple across most every area of law. And compensatory damages under the patent statute, which calls for damages adequate to compensate the plaintiff for its loss due to the defendant’s infringement, should be treated no differently than the compensatory damages in other fields of law.”)
- Reasons to Assert Failure To Mitigate In Addition to Laches: It’s law not equity so goes to jury not judge. Jury instruction describing plaintiff’s “duty” can have positive impact. With laches, even if prove delay + prejudice the judge still weighs the equities. With failure to mitigate damages in the case, chances are better that judge will allow jury to hear laches for an advisory verdict. Substantial differences between their elements. Increased damages for prolonged infringement is not considered economic prejudice for laches. Failure to mitigate damages does not require showing of “prejudice” per se. Failure to mitigate damages is broader than delay. E.g., here’s an Ill. Model jury instruction: “In fixing the amount of money which will reasonably and fairly compensate the plaintiff, you are to consider that a person whose [property] [business] is damaged must exercise ordinary care to minimize existing damages and to prevent further damage. Damages proximately caused by a failure to exercise such care cannot be recovered.”