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Nintendo to pay royalties over 3DS patent infringement

A U.S. District Judge set a royalty percentage last month that Nintendo Co. Ltd will have to pay to Tomita Technologies International Ltd. after it was found that Nintendo infringed on Tomita's patent of 3D camera technology.

Judge Jed Rakoff ruled on Dec. 11, 2013 that Nintendo must pay 1.82 percent of the wholesale price of each 3DS sold. The judge opted for a royalty percentage instead of a flat amount per device because the latter would be an "unearned windfall" for Tomita as prices for Nintendo's 3DS declined.

"If, as Tomita suggests, the ongoing royalty rate were expressed as a flat dollar amount per unit sold, Tomita would capture an increasingly large proportion of each sale as the price falls, even as the technology's reliance on the infringed patent remains constant," Judge Rakoff wrote in a statement. "This would result in an unearned windfall for Tomita, and, accordingly, the court prefers an ongoing royalty rate expressed as a percentage of wholesale price."

Tomita Technologies brought a lawsuit against Nintendo in 2011, accusing the Japanese hardware and software developer of infringing on Tomita's 3D camera technology, which allows users to see in 3D without the need for special glasses. The trial began on Feb. 2013, with Tomita's lawyer saying the company was owed $9.80 for every 3DS Nintendo sold. A jury ruled in favor of Tomita, awarding the company $30.2 million in damages. This figure that was later halved by Judge Jed Rakoff because it was "intrinsically excessive" and unsupported by the evidence presented at the trial.

The recent court decision also ordered Nintendo to pay $241,231 in supplemental damages and prejudgment interest.

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