There is a lack of consensus among Federal Circuit judges whether a jury should determine the amount of restitution or unjust enrichment damages. The three judges that decided TAOS v. Renesas (Fed. Cir. 2018) did not believe a jury should decide restitution for trade secret misappropriation. A different three-judge panel in TCL v. Ericsson (Fed. Cir. 2019) took a contrary position, holding that a jury should decide restitution for defendant’s past unlicensed sales of products infringing plaintiff’s patents. The different resolutions of the jury right question cannot be reconciled as dealing with different wrongful conduct – trade secret misappropriation in TAOS and patent infringement in TCL. Instead, they reflect a difference of opinion within the Federal Circuit on whether the same or substantially similar restitution remedy is legal or equitable in nature.

These Federal Circuit decisions are material to the continued development of guidelines for measuring monetary relief for trade secret misappropriation. In addition to actual losses, the trade secret owner is entitled to obtain the amount by which the misappropriator has been unjustly enriched (not otherwise accounted for in the award of actual losses). Relief in the form of actual loss is a damages-type remedy having the goal of compensating the trade secret owner for its losses. Relief in the form of unjust enrichment is a restitution-type remedy having the goal of preventing the misappropriator from unjustly benefiting at the trade secret owner’s expense. Whether future cases hold that a jury should decide unjust enrichment may well turn on which of TAOS’s or TCL’s views of restitution is adopted; if TAOS, this is equitable relief for which there is no jury right, or, if TCL, this is legal relief for which there is a jury right.

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