PMylnar Notes regarding penalty:
In addition, although the ability to determine Cadence's damages is a factual question not at issue on this appeal, one wonders how Cadence could prove how many sales it lost because of the presence of Avant!'s infringing software. See Budish v. Gordon, 784 F. Supp. 1320, 1337
(N.D. Ohio 1992) (finding that if the defendant was not enjoined from selling infringing books, there would be no reasonable manner for the plaintiff to prove how many sales he lost due to the defendant's competing books.)
For example, In Atari, the court applied the presumption of irreperable harm even though the plaintiff and the defendant were both corporations marketing video games and the loss was a loss of sales caused by competition from the defendant's infringing game. 672 F.2d at 620. The court even discussed the specific the specific amount of money the plaintiff had invested to develop the game and the sales figures, yet the court never suggested that the circumstances permitted the defendant to rebut the presumption of irreparable injury.
Note number 8 already posted follows this last paragraph.
You are correct, the judgement not only could be huge, but the marketshare increase also could be huge for CDN. |
