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:

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”).

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.