The Federal Circuit issued an opinion on March 18, 2019 that helps define what may be considered “a comparable” in a reasonable royalty analysis.  In this case, a jury returned a verdict hitting Time Warner with a $140 million damages figure to be paid to Sprint. For its part, Sprint’s damages expert had offered a reasonable royalty rate analysis based, in part, on an earlier verdict from a different matter involving Sprint and Vonage.

Time Warner appealed the matter to the Federal Circuit on damages, contending that the district court improperly admitted the Sprint/Vonage verdict involving technology of disputed similarity and a different carrier.  The Federal Circuit decided that the district court did not err in its admission:

The opinions of the Federal Circuit in this matter appear to broaden the scope of comparability so as to include comparable jury verdicts.  But consistent with earlier Federal Circuit opinions, the differences between any comparable and the hypothetical negotiation at hand should be addressed.

In addition to the issue of comparability, the court made an interesting comment on apportionment.  The court states that if the Georgia Pacific analysis is done correctly, then the analysis embodies apportionment principles.  This suggests that apportionment may be done through the factor analysis, including at least via Factors 9 and 13:

We expect to see this language appear with frequency in responses to Daubert motions on apportionment.