The district court had previously stricken certain parts of Oracle's damage expert report on two separate occasions. First, the district court struck Oracle's expert report for failing to apportion the value of the asserted claims and instead using the total value of Java and Android in calculating damages. Second, the district court partially excluded Oracle's expert's revised report for using a flawed apportionment methodology. In the new report, Oracle's expert set forth a new apportionment theory, which Google moved to strike again.
The district court summarized the third report as follows: " First, Dr. Cockburn starts with Sun's February 2006 demand of $99 million to defendant Google Inc. Second, he upwardly adjusts by $557 million to account for lost convoyed sales Sun projected to make through its licensing partnership with Google. Third, he adds $28 million by removing a revenue-sharing cap, resulting in a subtotal of $684 million. This is the pie he then apportions between the intellectual property in suit and the intellectual property not in suit. Fourth, he allocates part of this number to the patents and copyrights in suit, using two alternative methodologies -- the so-called "group and value" and "independent significance" approaches (Rpt ¶¶ 37-68). Based on these alternative apportionment methodologies, reasonable royalties for patents and copyrights in suit, through the end of 2011, are (1) between $70 and $224 million under the group-and-value approach, and (2) at least $171 million under the independent-significance approach. Fifth, he downwardly adjusts for extraterritorial infringement, failure to mark, and non-accused devices. With all the downward adjustments subtracted, Dr. Cockburn calculates patent damages to be between $18 and $57 million, and a copyright lost license fee to be between $35 and $112 million."