In this case where Microsoft’s Xbox and Kinect sensors are accused of infringing a facial recognition patent, the Virginia court excludes some opinions regarding the use of comparable agreements, the Entire Market Value Rule, and the basis for a lump-sum royalty. Plaintiff’s expert, Walter Bratic, opined that royalty damages should be a running …LEARN MORE
After precluding certain testimony by Plaintiff’s damages expert in January, the court now rules against the remainder of his damages opinion of $150 to $300 million “or more.” The court found that the expert’s reasonable royalty opinion was unreliable, being based upon a single litigation settlement that (a) occurred 5 years after the hypothetical negotiation, …LEARN MORE
As federal courts have raised the bar on what may be considered a “comparable” license for setting a reasonable royalty rate, the use of third-party (“market”) licenses seems to be an uphill battle. The Orlando district court permitted a damages expert’s opinion that used market licenses as a starting point for his royalty rate. Here’s the why and how. …LEARN MORE
This district court wrestles with a conflicting area of patent damages that we at VLF have previously identified: although the Fed. Circuit wants patent royalties to be based on the “smallest saleable unit,” it later rejected the use of MS Outlook (presumably the smallest saleable unit) as a royalty base.
In this case, Plaintiff’s damages expert, Larry Evans, calculated damages based on Intel processors – the smallest saleable unit – …LEARN MORE
CA Court: Calling a Non-Comparable Agreement Simply an “Additional Consideration” Doesn’t Help it Pass Muster
A California judge granted most of HTC’s Daubert motion against plaintiff’s damages expert, Joseph Gemini, for relying upon non-comparable agreements in his patent infringement royalty opinion. Gemini used a revenue sharing agreement as an “additional consideration,” apparently to bolster his Georgia-Pacific royalty analysis. …LEARN MORE