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**FEDERAL CIRCUIT VACATES COPYRIGHT DAMAGES AWARD FOR ERRONEOUS APPLICATION OF “BOOK OF WISDOM” DOCTRINE
4DD Holdings, LLC v. United States, 24-1996 — Yesterday in an opinion by Judge HUGHES, the Federal Circuit affirmed in part, vacated in part, and remanded a $12.7 million Court of Federal Claims copyright damages award against the U.S. government over its unauthorized use of 4DD’s TETRA healthcare interoperability software that the government had licensed to link Defense Department and Veterans Affairs medical records systems. 4DD argued the trial court erred by calculating damages under 28 U.S.C. § 1498(b) through a hypothetical negotiation rather than defaulting to rates set forth in the parties’ license agreement.
The Federal Circuit disagreed, holding no rule compels courts to defer to license terms in lieu of a hypothetical negotiation where the licensed use is not analogous to the infringing use. But the trial court erred in applying the “book of wisdom” doctrine, which allows courts to consider post-negotiation events when assessing damages, by relying on the government’s later, unforeseeable decision to abandon its implementation of TETRA to find it held superior bargaining leverage. The court also struck a $150,000 award for willful infringement because such enhanced statutory damages are unavailable against the government under § 1498(b).
(1 to 4 stars rate impact of opinion on patent & trademark law)
IPO CONNECT GETS AN UPGRADE
IPO Connect has been upgraded to make it easier for members to engage, share, and stay informed. The refreshed platform features improved posting tools, easier ways to connect with fellow members, a dedicated committee news feed, and access to IPO’s member mentor program. Visit your profile today to make sure it is up to date, and email connecthelp@ipo.org with any questions or feedback.
BOOK YOUR HOTEL ROOM FOR IPO’S ANNUAL MEETING
IPO has reserved a block of rooms at Sheraton Centre Hotel, where IPO’s Annual Meeting is taking place from September 27-29, 2026. To receive the IPO group rate of $415 CAD per night (single/double occupancy, plus taxes) for a single/double room, reservations must be made online by August 27, 2026 or until the room block is sold out, whichever comes first. After September 1st, rooms will be subject to availability at the standard hotel rate, if available. Visit the website for additional information and to register. Please note that IPO does not use a third-party reservation service. If you are contacted by a third-party claiming to be IPO or the hotel to make a room reservation – do not give out your information.
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USE “PATENTEE,” “PATENT OWNER,” OR NEITHER?
Patentee ─ Novices may assume this word is reserved for the entity to whom the patent was issued initially. Wrong! 35 U.S.C. § 100(d) defines “patentee” to encompass “not only the patentee to whom the patent is issued but also the successors in title to the patentee.”
Patent Owner ─ It means exactly the same thing as patentee. Today “patent owner” seems to be the more common term, especially in business documents such as contracts and licenses. If you’re drafting a formal document discussing the patent statute you may want to use patentee. Otherwise go with patent owner.
Neither ─ The opinions of U.S. courts, following the introduction, usually don’t refer to the parties with terms such as patent owner or petitioner. Court opinions use the names of the parties or abbreviated names. E.g., Smith contends this and Jones contends that. This style makes it easier for the reader in complex cases.
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