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District Court Denies Plaintiffs’ Motion to Exclude Damage Expert Report Where Expert Relied Upon Comparable Licenses

In this patent infringement action, Plaintiffs filed a motion to exclude the defendant’s damage expert. The motion sought to exclude portion of the defendant’s expert report on damages, in particular the “market share reasonable royalty analysis” which was based on licenses for the patents-in-suit.

As the district court explained, “the patents-in-suit have been licensed many times, and there appears to be agreement that licenses to Samsung, SK Hynix, and ProMOS are comparable licenses. There are complications because the licenses are worldwide licenses and market shares of the relevant products in the United States likely differ.”

The district court concluded that these were differences over the underlying facts, but the licenses were comparable. “Nevertheless, Green is purporting to use these admittedly comparable licenses, accounting for the differences that he considers to be significant, to reach a reasonable royalty.”

As a result, the district court concluded that the Plaintiffs’ objections were not related to methodology: “I believe the objections Plaintiffs raise are not ‘methodological’ objections in the Daubert sense, and Plaintiffs’ criticism of Green’s analysis can be brought out on cross-examination.”

Accordingly, the district court denied the motion to exclude.

HSM Portfolio LLC v. Elpida Memory, Inc., Case No. 11-770-RGA (D. Del. Feb. 11, 2016)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or

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