Gree, Inc. v. Supercell OY (Opinions, July 20, 2020)

Anyone checking the PACER docket for the Eastern District of Texas will find voluminous filings on behalf of the companies above. It would appear that the makers of Clash Royale and Clash of Clans have differing views of damages in this latest round of litigation.

Gree counsel hired Stephen Becker, and SuperCell counsel hired Christopher Bakewell. Judge Payne found Supercell’s complaints about Dr. Becker’s analysis went to the weight, not admissibility of his opinions; he found the same for Mr. Bakewell’s opinions. Most interesting, however, is that Judge Payne did not allow Mr. Bakewell or Supercell to testify about the cost or implementation of a non-infringing alternative (below, “NIA”).

Judge Payne’s opinion provides yet another cautionary tale of defendant’s untimely disclosure. He found that Supercell did not properly disclose its non-infringing alternatives through interrogatory responses or deposition testimony, and consequently, it could not offer any testimony other than what had been supplied through an interrogatory response:

Bioverativ Inc., et al. v. CSL Behring LLC, et al. (Opinion, March 4, 2020)

This opinion by Judge Andrews in Delaware provides insight into the court’s thinking with respect to convoyed sales. Ultimately, the court excluded certain opinions of Dr. Matthew Lynde, plaintiffs’ damages expert, based upon his opinion that non-infringing uses of the drug at issue constituted convoyed sales and, therefore, were subject to damages.

This case involved not a patented drug itself, but rather “infringing prophylaxis uses and non-infringing prophylaxis and on-demand uses.” Judge Andrews agreed with defendants that those sales to patients prescribed a non-infringing dosing regimen should not be subject to damages. Citing American Seating and Juicy Whip v. Orange Bang, the court explained that such non-infringing sales – generally subject to separate prescription – were not available for damages because they did not pass the functional unit test.

Plaintiffs’ damages here appear a simple case of over-reach.

Microsoft v. Corel Part 2 (Jury Verdict February 13, 2018)

In a rather anticlimactic end, the jury decided to award Microsoft $278,000 in damages from Corel’s infringement. The jury verdict form also asked the jury if the infringement was willful (“yes”) and if there was pre-suit notice of infringement (“no”).

Cox Communications v. Sprint Communications (terminated December 2017)

Judge Bataillon, Senior District Judge in Delaware, issued a ruling on summary judgment on the eve of trial. Shortly thereafter, the case settled. Prior to this ruling, the judge issued an opinion on several Daubert motions which were filed. The one motion of particular interest involves untimely disclosure, SSPU issues, and use of irrelevant profit information from unrelated, non-practicing, third parties.

The judge granted portions of the motion involving untimely disclosure and failure to tie the profit margin used to infringement. Judge Bataillon seems to be advising that if an infringer wishes to proffer any affirmative opinions (for which it bears the burden of proof) through its experts, those must be timely disclosed.

Arctic Cat v. Bombardier Rec. (December 7, 2017)

The CAFC issued this opinion regarding marking, ongoing royalties, willfulness and damages. The court reviewed the Daubert motion and found that the court did NOT err in NOT excluding the expert analysis which involved comparing an infringing product to a non-infringing product. Citing Apple v. Motorola the CAFC opined that, “factually attacking the accuracy of a benchmark goes to evidentiary weight, not admissibility.”

The initial rulings on the Daubert Motions and Motions for Summary Judgment are good reads as well.