by Dennis Crouch
Sunoco has filed its petition for certiorari in the butane blending damages fight, asking the Supreme Court to decide whether the Federal Circuit’s lost profits framework violates the “make-whole” command of 35 U.S.C. § 284, and whether the court’s approach to Federal Rule of Evidence 702 lets trial judges resolve fact disputes that belong to juries. Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC, No. 25-1387. The petition challenges Judge Stoll’s decision affirming Judge Richard Andrews’ exclusion of Sunoco’s entire damages presentation. Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC, Nos. 2023-1218, 2023-1274 (Fed. Cir. Jan. 16, 2026) (non-precedential).
Last month I listed this case among six placeholder petitions awaiting the Court and called it a companion to Finesse Wireless LLC v. AT&T Mobility LLC, No. 25-953, Paul Clement’s Seventh Amendment challenge to the same expert-testimony regime. Dennis Crouch, Six Petitions, Six Placeholders: The Patent Docket Awaiting the Supreme Court, Patently-O (June 8, 2026). But that companion case was recently denied certiorari.
A Delaware jury found three Sunoco patents willfully infringed and awarded $12 million, a figure built by multiplying two cents royalty per gallon of blended butane. Sunoco’s damages expert, Dr. Keith Ugone, was prepared to tell the jury that lost profits ran to $150 million or more, and infringer had (allegedly) profited by more than $300 million. The jury never heard any of that profit testimony. Judge Andrews excluded the expert testimony because it did not apportion-out the value of non-patented services bundled into those deals, leaving the defense’s two-cent figure as the only number in the courtroom.
The petition presents two questions:
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