Patent Damages
2Jan/12Off

NDCA denies Daubert motion for Defendant’s damages expert

In yet another damages opinion in a case where “the damages aspect [ ] has been controversial,” Judge Alsup in the NDCA denied Oracle’s motion to exclude Defendant Google’s damages experts.  Oracle argued that Google’s damages experts had offered improper technical opinions (such as on the viability of non-infringing alternatives), but the Court found that the damages experts were merely relying on underlying technical information from engineers, which Google planned to offer at trial.  Oracle also argued that many of the opinions offered were without evidentiary support or “spoon-fed” by Google engineers, but the Court largely disagreed and held that these issues went to credibility – rather than admissibility – in any event.  The Court did grant, however, one Oracle position – that non-infringing alternatives could not be used to decrease damages in the copyright context, as non-infringing alternatives, while potentially relevant to disgorgement, are not relevant to wrongful profits.

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