Articles Posted in Damages

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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) Genband has not marked those products with the patent numbers, (3) these unmarked products have been sold throughout the damages period; and (4) Genband has no evidence that Metaswitch had pre-suit notice of the patents-in-suit.

Genband’s opposition did not contest any of these facts. Instead, Genband argued that Metaswitch cannot meet its summary judgment burden because Metaswitch contended that Genband does not practice the patents-in-suit. In support of this position, Genband cited to the report of Metaswitch’s expert that Metaswitch hotly contests Genband’s assertion that it practices the patents-in-suit. As a result, Genband argued there is a genuine fact dispute because a reasonable jury could credit Metaswitch’s evidence and conclude that Genband does not practice the patents-in-suit.
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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, and Plaintiffs asserted that Bakewell relies on information that was not produced during discovery in his expert report, particularly on pound estimates for PE processing. Plaintiffs contended that Bakewell’s report improperly relie upon private conversations concerning non-infringing alternative costs.
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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.
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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. Spectrum also contended that the plaintiff violated a protective order by providing Taylor with information designated “Attorneys’ Eyes Only” under the protective order.

The Plaintiff conceded that it failed to identify Taylor prior to the district court’s deadline, but contended that the oversight was inadvertent. The Plaintiff also argued that Taylor’s report was timely filed before the expert report cutoff date and that Taylor was required to execute the Acknowledgment accompanying the protective order prior to receipt of any information marked confidential or attorney’s eyes only.
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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 the entry of judgment and to have a royalty set for ongoing infringement through the life of the Asserted Patents.

Sprint opposed the motion by asserting that both an accounting and ongoing royalties were improper because the jury instructions provided Prism compensation for past, present, and ongoing infringement. Prism responded that an accounting and ongoing royalties would grant Prism complete relief from Sprint’s infringement of the Asserted Patents.
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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 the non-exclusive hypothetical license.

The defendants first asserted that Mr. Ratliff made three math errors in adjusting a license agreement to derive the reasonable royalty rate for the hypothetical license. After reviewing the expert report, the district court found the approach sufficiently reliable to be admissible under the Federal Rules of Evidence and Daubert. “Why Cree and BU lowered the original 2% running royalty to 1% in the amended agreement, and whether additional payments from Cree and the sublicensees make the licensing scheme the economic equivalent of a 3% running royalty, are factual questions that go to the weight of his testimony.”
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In this patent infringement action, the plaintiff sought to substitute its damage expert because its current damage expert had retired. The plaintiff also sought to withdraw the retired expert’s damage report.

The Magistrate Judge construed this as a request to extend the discovery deadline. The Magistrate also determined that there was good cause for the request and granted the extension of the discovery deadline.
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The district court had previously held that no reasonable jury could find that the plaintiff Corning Optical Communications Wireless LTD (“Corning”) marked its products or otherwise complied with the marking requirements Section 287(a) of the Patent Act. Corning requested that the district court reconsider its ruling.

The district court noted that defendants had produced unrebutted evidence in support of their motion for summary judgment that “[a] sale of an accused distributed antenna system to an American end customer starts with the customer issuing a purchase order to Corning’s American parent. The parent company then issues a purchase order to Corning, and Corning in turn issues another purchase order to a third-party manufacturer. The manufacturer ships the product directly to the end customer in the United States. Corning takes title to a product when it leaves the manufacturer and retains it until it reaches the end customer. Immediately before title transfers to the customer, Corning’s American parent takes ‘flash title,’ temporary legal ownership that lasts only a split second.”
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Isola USA Corp. (“Isola”) moved to compel Taiwan Union Technology Corp. (“TUC”) to provide updated sales data in response to document requests an interrogatories. In response to this discovery, TUC had previously provided sales data on allegedly infringing products that covered a period up to December 31, 2014. Isola moved to compel TUC to update that data to cover a period up to July 31, 2015.

In its motion, Isoled asserts that the information sought was relevant because it would be an update of information TUC has already produced. Isola also asserted that it would be prejudiced if the information was not produced, because it should be allowed to present the most complete picture of damages to the jury at trial. In addition, Isola claimed that TUC was required to supplement its sales data pursuant to Federal Rule of Civil Procedure 26(e)(1)(A) on the theory that TUC’s disclosures are now “incomplete” due to the passage of time.
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Plaintiff Juno Manufacturing, LLC (“Plaintiff” or “Juno”) filed a patent infringement complaint against Defendant Nora Lighting, Inc. (“Defendant” or “Nora”). The complaint alleged that Defendant infringed Plaintiff’s patent, No. 5,505,419 (the “‘419 Patent”), entitled Bar Hanger for a Recessed Light Fixture Assembly. Nora filed a motion for summary judgment seeking a judgment that Juno was barred from recovering damages on the ground that Juno failed to properly label its products.

In its motion, Nora asserted that Juno failed to provide proper notice of the ‘419 Patent. As explained by the district court, the requisite notice can be actual or constructive.
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