By a vote of 10-1, the U. S. Court of Appeals for the Federal Circuit denied Uniloc’s requests for a panel rehearing and for a rehearing en banc, respectively.   Uniloc USA, Inc. and Uniloc Singapore Private Limited v. Microsoft Corporation, Case Nos. 10-1035, -1055 (Fed. Cir., May 16, 2011) (per curiam) (O’Malley, J., dissenting). 

In January of 2011, the Court determined that evidence relying on the 25 percent rule of thumb is inadmissible under Daubert and the Federal Rules of Evidence because it fails to tie a reasonable royalty base to the facts of the case at issue (see IP Update, Vol. 14, No. 1).  Thus, the Court held that as a matter of Federal Circuit law that the 25 percent rule of thumb is a fundamentally flawed tool for determining a baseline royalty rate in a hypothetical negotiation and should not be used.

Uniloc filed a combined petition for panel rehearing and rehearing en banc.  The Court also granted leave to file amici curiae briefs to 10 damages experts, all of whom appeared pro se.

Now by a vote of 10-1, the Court denied both requests by Uniloc.  Judge O’Malley dissented from the denial of the petition for rehearing en banc, but filed no separate opinion.