After a jury’s finding of patent infringement, the court rules on a number of pre-(damages)-trial motions, with 3 such rulings of interest. The court first finds that proffered testimony by defendant’s technical expert regarding possible “design arounds” as alternatives to the patented technology “is wholly speculative and, consequently, not helpful to the trier of fact. There is no indication that any of the technical alternatives proposed by Dr. Bishop would work. Dr. Bishop admitted as much at his deposition.”
Second, the court notes that defendants revised their sales data in 2011 to correct for duplicate entries in its data provided in 2006. Although plaintiff’s damages expert Brian Napper considered the new data, plaintiffs argue that the jury should choose which data is more accurate. The court rejects this argument, finding that the inaccurate 2006 sales data would be “confusing and misleading to the jury.”
Third, the court considers what appears to be Mr. Napper’s position that defendant Symantec’s $135 million cash purchase of Recourse Technologies was a useful indicator of patent value since that purchase included, among other things, Manhunt – an accused product. But the court concludes that “SRI may not offer evidence regarding Symantec’s purchase price for Recourse (which price included intellectual property) insofar as Mr. Napper did not perform any apportionment of this value to ManHunt. I will consider a proffer by SRI at trial regarding meetings between SRI and Recourse purportedly evidencing that the patents-in-suit were valuable (despite no deal having been brokered).” This ruling has somewhat of a Uniloc ring to it, where the CAFC ruled that plaintiff’s expert may not present to the jury the total sales of the accused product unless the patented feature is shown to be the basis of customer demand for those sales. Here, this court seems to be saying that the total acquisition price of Recourse should not be presented to the jury because it hasn’t been shown how important the patents-in-suit were to that total price. Unfortunately for plaintiffs, commissioning a purchase price allocation study in order to get this nugget into evidence would be a serious pill to swallow, as it could be quite costly.
SRI International v. Internet Security, et. al., 1-04-cv-01199 (DE, October 31, 2011, Order) (Robinson)