Overview
On September 25, 2026, a S.D. Cal. jury awarded Taction Technology, Inc. a $5.7 Billion verdict after finding that Apple infringed two of its patents related to a particular architecture for haptic actuators to produce low-frequency tactile feedback. Much of the reporting on this verdict has focused on its record-breaking status and its potential appellate fate at the Federal Circuit. This Post, however, focuses on a more general question––why have prior mega-verdicts collapsed under appellate scrutiny? In doing so, this Post will summarize three failure modes that have reduced prior record-breaking verdicts and whether any of these failures modes could similarly doom Taction’s verdict.
Evidentiary Foundation Issues: VLSI Tech. LLC v. Intel Corp., 87 F.4th 1332 (Fed. Cir. 2023)
In March 2021, a W.D. Tex. jury found that Intel had infringed two of VLSI’s patents and awarded VLSI a $2.175 billion verdict, $1.5 billion on one patent and $675 million on another. VLSI’s damages theory involved four steps where VLSI quantified the effect of use of the ’373 patent technology on the speed of Intel’s microprocessors, derived from quantifying its effect on power savings, then calculated the effect of a speed improvement on the price Intel could fetch for its products, then calculated the incremental revenue attributable to Intel’s use of the ’373 patent’s technology to determine how Intel and VLSI would have divided up the calculated incremental revenues to set a royalty for the right to use the patented technology. See VLSI Tech., 87 F.4th 1332, 1346-47.
On appeal, Intel challenged the $2.175 billion verdict by attacking VLSI’s damages theory and primarily arguing that this theory rested on an economically unsound apportionment methodology that overstated the incremental value attributable to the patented technology. The Federal Circuit agreed with Intel, vacated $1.5 billion of the jury verdict, and pointed out the shaky evidentiary foundation that VLSI’s damages theory rests upon. Specifically, the Federal Circuit explained that VLSI’s damages expert “used inputs that he chose by trying to match (only or in part) data not from use of infringing functionality” and “[t]hat step undermines the reliability of the results.” VLSI Tech., 87 F.4th 1332, 1348.
As it relates to Taction v. Apple, the largest patent verdict in U.S. history arrived in an unusual posture. Weeks before trial, the district court excluded Taction’s reasonable-royalty expert opinion after finding problems with the technical apportionment on which it depended. At trial, according to Apple’s Rule 50(a) motion, the jury never heard either the expert’s quantified royalty or the underlying 73% apportionment figure. The jury nevertheless returned a damages award of precisely $5,721,961,750. The question raised by the post-trial record therefore is whether the admissible evidence supplies a legally sufficient path to that number. As such, Apple's Rule 50(a) motion signals that this failure mode will most likely be Apple’s primary attack in both post-trial briefing and on appeal to challenge Taction’s $5.7 Billion verdict.
Overbroad Damages Base: Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., 807 F.3d 1283 (Fed. Cir. 2015)
In December 2012, a jury found for CMU on infringement and validity, and it awarded roughly $1.17 billion as a reasonable royalty for the infringing acts, using a rate of 50 cents for each of certain semiconductor chips sold by Marvell for use in hard-disk drives. The district court then awarded an enhancement of the past-damages award based on Marvell’s willfulness and entered a judgment of roughly $1.54 billion for past infringement and a continuing royalty at 50 cents per Marvell-sold chip. Carnegie Mellon, 807 F.3d 1283, 1288. On appeal, Marvell argued that the district court erred in failing to strike the portion of the damages award that rested on sales of foreign chips that were manufactured, sold, and used abroad without ever entering the U.S. Marvell’s argument was that the damages base was overbroad because it included sales of chips used worldwide, and therefore did not accurately estimate use of the patented method in the U.S. The Federal Circuit agreed with Marvel, stating “[w]e accordingly must vacate the portion of the damages award […] and the portion of the ongoing-royalty order, which apply the royalty rate to chips not made or used in, or imported into, the United States.” Carnegie Mellon, 807 F.3d 1283, 1311. The Federal Circuit vacated the damages award in part and remanded the case for a new trial “to determine whether the sales are properly said to have been in the United States.” Id. at 1308.
Returning to Taction v. Apple, Taction’s $5.7 Billion jury verdict may potentially be susceptible to this failure mode as well if Taction’s damages base included any sales not tethered to the value of the asserted patents. For example, if the damages base included any extraterritorial sales and that foreign conduct did not increase the value of the domestic infringement, then a portion of the verdict may be vacated on appeal. See Brumfield v. IBG LLC, 97 F.4th 854 (Fed. Cir. 2024). Also, if the damages base is not properly apportioned and is therefore over-inclusive of value of the asserted patents, Taction’s jury verdict may be overbroad and similarly susceptible.
Because the trial transcript and associated exhibits in Taction v. Apple are not yet public, it is difficult to determine the precise scope of the damages base presented at trial. However, according to Apple’s Rule 50(a) motion, “Taction’s only disclosed damages theory depends on its license with Corsair,” and that “[t]he Corsair royalty paid for far more than any patent; it compensated Taction for a technology transfer.” Taction v. Apple, No. 3:21-cv-00812-TWR-JLB, ECF No. 687 at 10, 13 (S.D. Cal. Sept. 23, 2026). Apple also argued that Taction presented a new damages theory based on “two different sets of materials costs” and “[n]either cost is tethered to the value of the asserted patents.” Id. at 14. Therefore, it appears that Apple is already setting up the argument to attack Taction’s jury verdict for using the overbroad damages base failure mode in post-trial briefing.
Non-Infringement and/or Invalidity: Idenix Pharms. LLC v. Gilead Scis. Inc., 941 F.3d 1149 (Fed. Cir. 2019)
In December 2016, a Delaware jury awarded Idenix $2.54 billion after Gilead had stipulated to infringement under the district court’s claim construction. The principal trial fight was therefore validity. The jury rejected Gilead’s invalidity defenses and returned what was then the largest patent damages verdict in U.S. history. However, in post-trial briefing, the district court granted JMOL against Idenix and found that U.S. Patent No. 7,608,597 was invalid for lack of enablement but denied JMOL on written description grounds. Idenix appealed the enablement JMOL to the Federal Circuit. On appeal, the Federal Circuit affirmed the district court’s grant of JMOL for lack of enablement and also reversed the JMOL on written description finding the specification “fails to provide sufficient blaze marks to direct a POSA to the specific subset of 2'-methyl-up nucleosides that are effective in treating HCV.” Idenix, 941 F.3d 1149, 1164.
This specific failure mode that doomed the then largest patent damages verdict in U.S. history was distinct from the damages case and related to the validity of the underlying patent-in-suit. Getting back to Taction v. Apple, unlike Idenix, where infringement had been stipulated and only validity remained contested, Taction presently has adverse jury findings against Apple on both infringement and validity, making both potential issues in a forthcoming appeal. Subject to preservation and post-trial rulings, Apple could potentially appeal both infringement and validity after final judgment in effort to challenge the $5.7 Billion jury verdict using this failure mode.
