In the most recent installment of Akamai Technologies v. Limelight Networks, Nos. 09-1372, 09-1380, 09-1416, 09-1417 (Fed. Cir. Nov. 16, 2015), the Federal Circuit unanimously approved a calculation of Akamai’s damages based on lost profits, remanding for reinstatement of the jury’s $45.4 million damages award.
Akamai’s expert calculated Akamai’s lost profits by assuming that at least some of the customers purchasing Limelight’s infringing product would, absent infringement, have purchased Akamai’s product instead. Limelight challenged this assumption, arguing that a significant price disparity between the products—Akamai’s product was twice the price of Limelight’s—would have deterred Limelight’s customers from turning to Akamai’s product. But the Federal Circuit found the lost profits analysis sound, reasoning that Akamai’s expert had accounted for this price disparity by excluding the lowest-earning 25% of Limelight’s customers and discounting the lost profits for price elasticity.