Patent Damages

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. 


ED Michigan Refuses to Bifurcate Damages Discovery from Liability Discovery

On June 6, 2011 Judge Julian Abele Cook Jr. of the Eastern District of Michigan issued an opinion denying plaintiff’s request to “bifurcate discovery related to liability from discovery related to damages.” Delphi Auto. Sys., LLC v. Vehicle Occupant Sensing Sys., 2011 U.S. Dist. LEXIS 59950, *2 (E.D. Mich., June 6, 2011). Ultimately, the Court denied plaintiff’s request for bifurcation referencing (1) the lack of need and (2) the failure to “establish a likelihood that [plaintiff would] prevail on the liability issue.” Id. at *6.

Plaintiff provided two arguments in support of its request. First, “that they [would] be prejudiced […] because damages would require their disclosure of confidential records[.]” Id. And, second, “that bifurcation would lead to a more expedient or efficient litigation[.]” Id. at *7.

In response to the first argument, the Court held that confidential records can be protected by “obtain[ing] protective orders.” Id. And, responding to plaintiff’s second argument, the Court stated that expedient litigation was not a clear benefit of bifurcation when considering the possibility of “extended motion practice which would require the Court to identify the category into which the requested discovery [fell].” Id.