In the ongoing battle between Apple and Motorola, Motorola moved to strike portions of Apple's supplemental expert report on damages. The district court had previously granted Apple's request to supplement its damages expert report to address information that was disclosed between the filing of Apple's initial damage report and the close of discovery. The royalty estimate disclosed in the expert report was based on the costs of designing around the patent-in-suit.
As explained by the district court, "[o]ne measure of the costs of avoiding the '263 technology concerns the cost of integrating non-infringing codes into various applications. Napper's estimate of this cost has been revised upward in light of Rubin's deposition testimony, which postdates the march 20 submission of Napper's initial expert report, even if the relevant Packet Video license agreements may have been disclosed earlier. Revision of this estimate doesn't violate my April 16 order. Napper's reference to the Steward deposition testimony is similarly permissible."
Motorola also requested that it be permitted to supplement its own expert damages report to address the Rubin deposition testimony. The district court denied that request based on Motorola's failure to request supplementation promptly after the deposition testimony. "Motorola's request to supplement its own expert damages report to address Rubin's deposition testimony is denied. Motorola made no request to supplement its expert reports in its April 15 opposition to Apple's supplementation request, though it was aware of Rubin's deposition testimony--which Apple had mentioned in its supplementation request--at that time."
Accordingly, Motorola's motion was denied.
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