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Mentor Graphics Corp. v. EVE-USA, Inc.

En Banc Court Declines to Revisit Need for Apportionment in Panduit-Based Damages Cases

Mentor Graphics Corp. v. EVE-USA, Inc., (Fed. Cir. Sept. 1, 2017) (En banc: Per curiam; Concurring in the denial: Stoll (with Newman, Moore, O’Malley, Reyna, Wallach); Dissenting from the denial: Dyk (with Hughes); Concurring in the denial: Moore (with Chen)) (D. Or.: Mosman) (3 of 5 stars)

Fed Cir denies EVE-USA’s petition for rehearing en banc.

Concurrence in the denial (Stoll): Judge Stoll endorses the panel’s determination that when the Panduit factors are applied in a lost profits analysis, there is no further apportionment requirement.

Dissent from the denial (Dyk): Judge Dyk reads Supreme Court precedent as requiring apportionment in all cases, including lost profits cases applying Panduit, as the first and second Panduit factors are insufficient to actually provide the necessary apportionment.

Concurrence in the denial (Moore): Judge Moore notes that EVE had asked the court to revisit assignor estoppel doctrine, but finds this case an insufficient vehicle to do so as the briefing did not substantively treat the issue and the facts were not well oriented to consider whether privity doctrine had expanded too broadly.

KEYWORDS: EN BANC; LOST PROFITS; APPORTIONMENT; ASSIGNOR ESTOPPEL