The District of Arizona, in GoDaddy.com LLC v. RPost Communications Limited, Case No. CV-14-00126-PHX-JAT (Judge James A. Teilborg) (May 10, 2016), excluded the entire report of Defendant’s damages expert, Gregory Smith, but allowed a do-over.
Plaintiff GoDaddy moved to exclude Smith’s testimony under FRE 702, asserting two grounds: (1) Smith inappropriately accounted for non-infringing features in his royalty rate analysis rather than apportioning the royalty base, and (2) because Smith used the entire revenue of the accused product as the royalty base, he necessarily applied the entire market value rule (“EMVR”) but failed to demonstrate that the patented features form the basis of consumer demand. Defendant RPost denied that Smith applied the EMVR, arguing that the accused products were the smallest saleable unit (“SSU”), and the Federal Circuit has never defined a particular formula for apportioning damages for SSUs. Smith used the operating margin of the accused products and apportioned the royalty rate instead of the royalty base.
C.D. Cal. excludes do-over damages opinions for failure to apportion and allows second do-over if case proceeds to damages phase
The Central District of California, in Enovsys LLC v. AT&T Mobility LLC, et al., Case No. 11-5210 SS (Judge Suzanne H. Segal) (August 10, 2015), granted Defendant AT&T’s motion to exclude the supplemental opinions of Plaintiff Enovsys’ damages expert. The Court also bifurcated the trial into liability and damages phases, and allowed for a second supplemental damages opinion in the event the case proceeded to the damages phase.
In June 2015, the Court granted AT&T’s Motion in Limine to Exclude Enovsys’ damages expert, Russell Parr because Mr. Parr’s “did not sufficiently tie damages to the ‘limited features’ of the patented invention.” (slip op. at 3). The Court allowed Enovsys a do-over. AT&T took the position that the do-over report suffered from the same defect as the original report – the damages calculations were not tied to the value of the patented invention.
The District of Delaware, in Comcast IP Holding I LLC v. Sprint Comms. Co. LP, Civil Action No. 12-205-RGA (Judge Richard G. Andrews) (Sept. 29, 2014), granted Sprint’s motion in limine to exclude Comcast from introducing at trial profits and/or revenues related to the accused products. Sprint argued that this evidence was not allowed due to the entire market value rule (EMVR). Comcast contended that its expert did use EMVR but instead had apportioned. After obtaining a proffer of the Comcast expert’s testimony, Judge Andrews ruled for Sprint. He did note, however, that this exclusion still left Comcast with a basis to seek damages, which he believed would be in the same amount requested without the exclusion.
On June 21, 2014, Judge Davis of the Eastern District of Texas issued an opinion on a Daubert motion. The case is Thinkoptics, Inc. v. Nintendo of America, Inc., Case No. 6:11-CV-455. Thinkoptics moved to exclude the testimony of Nintento’s damages expert, Professor Daniel J. Slottje. The court granted the motion, but also allowed a do-over.