Patent Damages

Damages opinion related to FRAND excluded due to lack of supporting evidence

Posted by Liz Ranks

The Eastern District of Texas, Tyler Division, Magistrate Judge K. Nicole Mitchell presiding, in Network-1 Techs., Inc. v. Alcatel-Lucent USA, Inc.,[1] Civil Action 6:11-cv-492-RWS-KNM (E.D.TX Sept. 21, 2017) granted-in-part Plaintiff’s motion to exclude certain opinions of Defendant Hewlett-Packard Company’s (“HP”) F/RAND licensing expert M. Ray Perryman.  The patent-at-issue relates to remotely powering access equipment over an Ethernet network, an act which is essential for practicing certain IEEE standards.  Under Rule 702 of the Federal Rules of Evidence, as well as the Daubert standard, the Court analyzed Plaintiff’s motion to exclude HP’s expert’s opinions on 1) royalty stacking; 2) applying definitions from an IEEE document to its patent policy; 3) patent hold-up; and 4) influence of the threat of an injunction on past licenses.  Due to a lack of supporting evidence, the Court excluded Perryman’s opinions, with the exception that Perryman would be allowed to apply the definitions from an IEEE document to Plaintiff’s patent policy.

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