On Monday, November 14, 2011, the Federal Circuit in Powell v. The Home Depot U.S.A., Inc. made two significant rulings regarding patent damages and inequitable conduct.

• It held that when a patent applicant fails to inform the PTO that the circumstances supporting a Petition to Make Special no longer exist, such conduct does not constitute inequitable conduct because it fails to meet the “but-for materiality” standard of Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276 (Fed. Cir. 2011) (en banc).

• It held that damages based on a reasonable royalty analysis may in some circumstances exceed the inventor’s expected lost profits.