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Articles Posted in Damages

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District Court Excludes Evidence of Lost Profits Where Inventor Did Not Make Products That Practiced the Patent Even Though a Related Corporation Did

In this patent infringement action, the defendants filed a motion in limine to exclude evidence of any claimed lost profits damages alleged by the plaintiff, the inventor of the patent-in-suit. The defendants asserted that the plaintiff could not recover lost profits damages because he did not make or sell products…

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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…

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District Court Denies Request for Order Compelling Production of Damage Expert Report from a Different Pending Case

In this patent infringement action between Chrimar Systems, Inc. (“Chrimar”) and Alcatel-Lucent USA, Inc. (“Lucent”). Lucent sought production of the damages expert report of Plaintiffs’ damages expert, Robert Mills, that was created for a litigation currently pending in the Northern District of California. Chrimar opposed the request on the ground…

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District Court Precludes Plaintiff from Presenting Damage Theories That Were Not Disclosed in Rule 26(a) Disclosures

The plaintiff, Radware, planned to present damages theories in its closing argument seeking more than twice the damages that its retained expert on damages computed. The district court noted that “[w]hile expert testimony is not always required to prove damages, any damages theory must have evidentiary support. Radware had a…

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Partial Summary Judgment Granted on Failure to Mark Where Defendant Stipulated That Plaintiff Practiced the Patent-In-Suit

Metaswitch Networks Ltd. (“Metaswitch”) filed a motion for partial summary judgment to limit Genband US LLC’s (“Genband”) damages based on a failure to mark. In support of its motion, Metaswitch argued that partial summary judgment should be granted because: (1) Genband makes and sells products that practice the patents-in-suit, (2)…

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District Court Declines to Exclude Damage Expert Even Though Expert Relied Upon Information Not Disclosed During Discovery

Plaintiffs Equistar Chemicals, LP and MSI Technology, LLC accused Westlake Chemical Corporation (“Westlake”) of infringing U.S. Patent No. 7,064,163. The asserted patent relates to a method of making polyolefin-based adhesive resins used for bonding to or bonding together polyolefins and polar materials. Westlake retained Christopher Bakewell as a damages expert,…

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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…

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District Court Grants Motion to Strike Damage Expert Where Damage Expert Did Not Serve Report Prior to Court Deadline

In this patent infringement suit, Defendants and Counterclaimants James Stephens and Spectrum Laboratories, LLC (“Spectrum”) moved to strike the report of Plaintiff’s damages expert, Robert Taylor. Spectrum argued that the Plaintiff did not designate Mr. Taylor as an expert before the expert designation deadlines set by the district court expired.…

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District Court Denies Accounting and Ongoing Royalty Where Jury Instructions Told Jury to Award Damages That Would Put Patent Holder in Same Financial Position Had Infringement Not Occurred

Prism brought suit against Sprint alleging patent infringement of U.S. Patent Nos. 8,127,345 and 8,387,155 (the “Asserted Patents”). After the jury returned a $30 million award in favor of Prism, Prism filed a motion for an accounting and ongoing royalties. Prism requested an accounting for Sprint’s infringement after 2014 through…

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District Court Strikes Portion of Damage Expert Report Where the Expert Relied Upon Surveys But Did Not Explain How They Related to Specific Facts of Case

The defendants moved to exclude the expert report of Mr. Ratliff, asserting that he made critical errors in his expert report on damages. The defendants specifically alleged that Mr. Ratliff committed basic math and reasoning errors in adjusting the royalty rate in an exclusive license from 1% to 4% for…

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