District of Connecticut Declines to Exclude Survey, Finding Alleged Deficiencies Go To Weight, Not Admissibility
The District of Connecticut, in Gerber Scientific International, Inc. v. Roland DGA Corp., et al., Case No. 3:06cv2024 (Judge Covello) (June 27, 2016), denied Defendant’s Summary Judgment of No Lost Profits. Plaintiff’s damages expert presented a lost profits theory relying solely on a survey. Defendant contended that the survey was “unreliable, untrustworthy, and prejudicial.” (Slip op. at 1). The Court noted that there is a split in authority over the proper consequence for unreliable or untrustworthy survey evidence. “While some courts . . . believe such flaws are proper grounds for exclusion, others view methodological errors as affecting only the weight of the evidence.” Schering Corp. v. Pfizer, 189 F.3d 218, 225-26 (2d Cir. 1999).
While the Court agreed that “indications of unreliability and/or untrustworthiness may result in the exclusion of a survey,” the Court held that “the deficiencies alleged by [Defendant] in this case are not clearly egregious or sufficiently prejudicial to warrant exclusion at this time.” (Slip op. at 1).
The Western District of Michigan, in Magna Elec., Inc. v. TRW Auto. Holdings Corp., et al., 1:12-cv-654 (Judge Maloney) (December 31, 2015), denied Defendants’ motion for summary judgment, allowing Plaintiff’s accelerated market entry theory and its claim for future damages to proceed to the jury.
Plaintiff sought damages from Defendants’ sales of certain products from 2013 to 2023. At least a portion of the damages Plaintiff sought were post-expiration of the patent. Relying on Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401 (2015), Defendants argued that Plaintiff’s claim for post-expiration damages, in the form of lost profits, was barred.
On February 5, 2015, in Rembrandt Wireless v. Samsung, Case No. 2:13CV213-JRG-RSP, Judge Payne entered a Magistrate’s Recommendation recommending that Samsung’s motion for summary judgment be denied. Samsung argued that Rembrandt should be barred from receiving any pre-notice damages, because Rembrandt had allegedly not complied with the marking statute. Specifically, Samsung alleged that while Rembrandt itself had no products to mark, one of its licensees – Zhone – had sold products embodying claim 40 of the asserted ‘580 patent but had not marked them.
On March 2, in azd-2-12-cv-01797-267, Case No. CV-12-01797-PHX-JAT, Judge Teilborg of the District of Arizona denied a motion for summary judgment based on a marking defense. Holland moved for summary judgment of no damages for units sold before the date of actual notice, arguing that no constructive notice had been provided since PCT did not properly mark. The products at issue were coaxial connectors, and PCT argued that the products were too small to make it feasible to legibly mark on the products themselves. That being said, Holland pointed out that PCT did affix a label to some of the connectors, bearing the PCT logo as well as the PCT part number. These labels, however, are 5mm in height and have text of only 2.8mm, and PCT countered that it was not feasible to add the patent information to these labels, or to make the labels any larger.
On April 21, 2014, Judge Stark of the District of Delaware issued an opinion in Intellectual Ventures I LLC v. Xilinx, Inc., Civil Action No. 10-1065-LPS, in which the court denied in part and granted in part Xilinx’s motion for summary judgment of no damages. (The court also granted Xilinx’s summary judgment motion of no willful infringement.)