Tag: Judge Davila

Netfuel, Inc. v. Cisco Systems Inc. (Order, March 17, 2020)

Judge Davila from the Northern District of California granted a Defendant’s motion to strike the technical expert and damages expert opinions on apportionment, and the damages expert report on all other issues as well. The court’s order serves as a cautionary tale not only for technical experts, but also for damages experts who would rely on technical experts for apportionment.

Plaintiff’s damages expert, Walter Bratic, relied on technical expert, Aviel Rubin, for an apportionment analysis. Dr. Rubin informed Mr. Bratic that certain percentages of practicing products and accused products were associated with the patents in suit. Mr. Bratic applied those percentages to his damages figures to apportion royalty rates. The court found, however, that Dr. Rubin’s percentages were “plucked out of thin air.” As such, the court further ruled that Mr. Bratic’s damages analysis, which relied on those percentages, would not be presented to the jury.

While reliance on a technical expert for damages opinions is both allowed and encouraged, it must also itself be subject to the damages expert’s critical consideration. Judge Davila made clear that a damages expert may not blindly rely upon a technical expert whose opinions have no basis in the facts of the case, but instead derive solely from his or her unrelated expertise. Damages experts must assess the reasonableness or the logic of the opinions relied upon. In this matter, while the apportionment exercise was not performed by Mr. Bratic himself, reliance on Dr. Rubin’s resulted in the exclusion of both.

Mr. Bratic’s comparable license approach to damages was also struck for being “plucked out of thin air.” Heavily citing the GPNE Corp. matter as well as LaserDynamics, the court rejected Plaintiff’s damages analysis in its entirety:

Finally, in this instance, the court would not entertain a “do over.” Judge Davila sagely noted, “Allowing a ‘second bite’ can encourage ‘overreaching on the first bite.'” We decidedly welcome that perspective.

Microsoft v. Corel (Jury Trial Scheduled for February 6, 2018)

In his recent opinion regarding a Daubert motion on Microsoft’s damages expert, Judge Davila in the Northern District of California contributed to the road map of dos & don’ts for design-around costs and damages in patent infringement matters.  The expert was allowed to opine about Corel’s estimated design-around costs; however, the expert was not allowed, instead, to use an estimate of what Microsoft would have spent had it needed to design around its own patented technology.  One interesting aspect of this order is that the technical expert and the damages expert appear to have had two different opinions about the design arounds:

We’ll see what the jury decides on this matter in the coming weeks.