Texahoma Highway Construction Case Study And Analysis Help With Solution
Texahoma Highway Construction Case Solution
All figures in $’000, except percentages.
1. Estimate damages for lost operating profit years 3-5 from lost sales due to infringement Lost sales are sales made by infringers, but are sales which Salsa as the patent owner should have made. Lost profits from lost sales are based on noise wall square feet sold by infringers, converted to Salsa pre- infringement prices less costs.
2. Estimate damages for lost operating profit years 3-5 from margin erosion.
Margin erosion is the monopoly price that the patent owner can charge, less the lower price charged by infringers. Lost profits from margin erosion are based on noise wall
square feet sold by Salsa, converted to Salsa pre-infringement prices less costs.
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3. Should there be damages for lost profits on “convoyed” sales in this case? Explain your answer clearly and completely, with reasoning, and – if there should be damages for lost profits on “convoyed” sales – you should calculate them.
It could reasonably be argued that Salsa is the one and only qualified bidder on all Texahoma highway contracts, because no other company can meet the specifications for the noise wall part of the highway contracts. In that case, the entire highway contract (except for the noise wall portion) is a “convoyed” sale for Salsa. On the other hand, it is actually the noise wall portion that is the “convoyed” sale from the entire remaining portion of the contract, especially because the noise wall portion is only about 10% of the total highway contract. So to call the entire contract (minus the noise wall portion) a convoyed sale of the noise wall portion might seem like the tail wagging the dog.
As shown below, the estimated damages for convoyed sales are more than twice the combined damages from other sources, which also seems like the tail wagging the dog. In the actual case, Salsa decided not to ask the court for damages on convoyed sales, because that would make Salsa the one and only bidder qualified to bid on every highway contract. Salsa feared that the DOH would then change the specs for containing construction noise. Therefore Salsa preferred not to win something they could not hold on to. They were satisfied to compete with other contractors for the non-noise wall part of highway contracts. As the saying goes, you need to know when to hold them, and when to fold them.
However, Salsa used the convoyed sales issue as a bargaining chip in pretrial negotiations that attempted to settle the case. Therefore, the testifying damage expert was asked by Salsa to calculate the lost profits from the possible convoyed sales, and that the court would decide whether or not the convoyed sales should be taken into account.
4. You should calculate lost profit damages on convoyed sales, so that the court can consider them, if it wishes to do so.
5. Calculate the total value of all the damages as of June 30, year 6, which is the estimated date of the completion of the patent infringement trial. You may assume that profits are earned equally throughout the year, which is equivalent to assuming that each year’s profits are earned on June 30 of that year.
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