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District Court Permits Survey Evidence to Support Lost Profits Damage Theory

The defendants’, Roland DGA Corporation and Roland DG Corporation (collectively “Roland”), filed a motion for summary judgment against plaintiff, Gerber Scientific International, Inc. (“Gerber”) regarding Gerber’s claims for lost profits and enhanced damages. Gerber’s claim for lost profits was based, in part, on survey evidence.

The district court explained that “[t]o recover lost profits a patentee must show that „but for’ infringement it reasonably would have made the additional profits enjoyed by the infringer.” Micro Chemical, Inc. v. Lextron, Inc., 316 F.3d 1119, 1122 (Fed. Cir. 2003). “A patentee may resort to any method showing, with reasonable probability, entitlement to lost profits „but for’ the infringement.” Id.

Roland asserted that there was no admissible evidence to support Gerber’s claim for lost profits because the survey upon which Gerber exclusively relied upon was “unreliable, untrustworthy, and prejudicial.” The district court found that a review of the case law suggests that there is a dispute over the proper consequence of alleged unreliability and/or untrustworthiness of survey evidence. See Schering Corp. v. Pfizer, 189 F.3d 218, 225-26 (2d Cir. 1999) (comparing cases). “While some courts . . . believe such flaws are proper grounds for exclusion, others view methodological errors as affecting only the weight of the evidence.” Id.

The district court therefore agreed with Roland that “indications of unreliability and/or untrustworthiness may result in the exclusion of a survey.” But the district court nonetheless concluded “that the deficiencies alleged by Roland in this case are not clearly egregious or sufficiently prejudicial to warrant exclusion at this time. See, e.g., New Colt Holding Corp. v. RJG Holdings of Fla., Inc., 312 F.Supp.2d 195, 224-25 (D. Conn. 2004) (holding that the defendants’ objections as to the trustworthiness of the survey, “while serious and could properly convince a fact finder to discount the survey entirely, properly go to the weight of the survey”).

Accordingly, the district court determined that Gerber had presented “sufficient evidence concerning lost profits to raise genuine issues of material fact” and denied the motion for summary judgment.

Gerber Scientific Int’l v. Roland DGA Corp.,
Case No. 3:06cv2024 (AVC) (D. Conn. June 27, 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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