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ARTICLES
Oracle’s Damages Expert Can Take 3rd Swing, but Oracle to Pay Costs
In the always-interesting case of Oracle v. Google regarding Google’s alleged use of Java technology in Android, which we at IPValueBlog have followed, Judge Alsup decided to give Oracle’s damages expert a third attempt at a damages opinion, but Oracle will have to pay Google’s costs of rebutting it. The court also notes that Oracle cannot change or add damages experts, cannot depose Google’s expert on his rebuttal, must confine themselves to areas stricken by the court, and might “be impeached at trial by [Cockburn’s] track record of rejected methodologies.” The court notes: “Oracle has already had two full and fair opportunities and has overreached on both. Oracle has behaved unreasonably and should bear the burden of the consequences. Apart from reasonableness or not, allowing a third try of this magnitude is rare in federal litigation and the party responsible for the need for a third try should bear the full burden thereof.” Oracle America, Inc. v. Google Inc., 3-10-cv-03561 (N.D. CA, January 20, 2012, Order) (Alsup)Can a Patent Have Negative Value? Microsoft May Have Found One Way.
The internet is abuzz over a recently issued Microsoft patent, dubbed the “avoid ghetto” patent. Amidst the charges of racial discrimination, you can’t help but wonder how much the kerfuffle tarnishes the Microsoft brand, and whether the patent will even be worth it in the end. The patent, 8,090,532 (issued January 3, 2012) is titled “Pedestrian route production” and describes ways to steer users away from areas of high crime or bad weather. According to the patent, the user’s phone gathers data including “maps (e.g., extracted from a database), user history, weather information, crime statistics, demographic information" and uses some of that data to form a route. The patent also mentions integrating advertisements into the route, which presumably means presenting ads for nearby shops and restaurants. It doesn’t sound like the technology is currently available in mobile phones. Nonetheless, it has created some negative press for Microsoft. Here’s a sample: • A number of news sources are citing to Sarah Chinn, author of Technology and the Logic of American Racism. She tells the Associated Press that the stats indicated in the app might be skewed to discriminate against particular demographics. "It's pretty appalling," Chinn said of the “app,” and further that Microsoft "defines ... Read MoreCourt Excludes Damages Expert for Also Opining on Factual Issues
A Washington district court excluded the expert report and testimony from a damages expert because he also opined on factual issues that are for the jury to determine. In this patent infringement matter, defendant retained Keith A. Hock to provide opinions on (1) whether defendant Kett made a sale to plaintiff PacTool before a certain date and (2) PacTool’s damages. The Court explains: “PacTool moves to exclude the opening report of Hock and related testimony regarding when and if sales were made because it is not credible, it is outside of Hock’s expertise, and it would be confusing to the jury. The Court agrees with PacTool and finds that Hock’s opening report improperly invades the province of the jury to find facts that are at issue. Hock relies on sales documents and inventory documents to conclude that Kett sold the thin blades to PacTool prior to March 6, 1997. That specific conclusion is a question of fact for the jury to determine. If the Court allowed this testimony, Hock would not be assisting the trier of fact to understand or determine a fact at issue; Hock would be providing testimony that there actually was at least one sale made. This is ... Read MoreCA Court Accepts Testimony That Royalty Rate Need Not Be Split Amongst Patents…Then Proceeds to Split it Amongst Patents
In this order on post-trial JMOL motions, a California court declined to exclude expert testimony presented as a single reasonable royalty rate for a group of 3 patents. The Court then finds one patent invalid and then uses its own methodology to adjust the expert’s royalty rate down by apportioning the rate amongst the remaining patents. It breaks down like this: • Defendant Staples argued that testimony of Plaintiff’s expert (Newman) should be excluded because he did not attempt to tie demand to any individual patent, but analyzed the 3 patents collectively to determine the reasonable royalty. • The judge rejects that motion, citing (a) that Plaintiffs took a similar approach in licensing negotiations of negotiating royalties by product, regardless of number of patents involved, and (b) a lack of specific legal guidance on this issue. • The Court then finds that the jury awarded royalties at a rate of 13%, which exceeded the highest rate in evidence (10% per Newman). Thus, royalties should be reduced. • The Court finds that one of the three patents-in-suit is invalid, and so a royalty rate of 10% would be too high. Additionally, the way that the jury split up the royalty rate amongst patents is not ... Read More
VLF Consulting, Inc.
