Many motions are longshots. Thrown out like a message in the bottle, with little hope that they will ever find a helpful shore. An act born of desperation more than reason.
Damages Daubert's are the exception. If you can cobble together a good one, you've got a fair chance of knocking out a big portion of the damages case.
This is exactly what happened last week in Fundamental Innovation Systems Int'l LLC v. Anker Innovations Ltd., C.A. No. 21-339-RGA (D. Del Feb. 11, 2025). The plaintiff there based its damages theories on a series of other licenses that included the patents in suit along with more than 200 other US and foreign patents.
The defendant complained that plaintiff failed to apportion out the value of the four relevant patents, and had instead simply used the average royalty across the allegedly comparable portfolio licenses. Which, I mean, fair.
Plaintiff countered that the apportionment was not required - or rather that it was built in -- because their policy was to only grant portfolio licenses.
Judge Andrews, granting the Daubert motion, found this argument unavailing:
Fundamental's policy to license its entire patent portfolio is virtually irrelevant . . . The Federal Circuit agrees. In Omega, the court rejected the plaintiff's argument that its policy of charging the same licensing fee, "whether ... one patent or [fifty] patents" were licensed, had built-in apportionment because such a scheme "would permit it to obtain a particular royalty rate merely by relying on its internal 'policy' without regard to comparability." The same is true here. If Fundamental could use its internal policy only to license its entire patent portfolio, such a policy could "permit [it] to hide behind its generic licensing arrangement to avoid the task of apportionment."
Id. at 25 (quoting Omega Pats., LLC v. Ca/Amp Corp., 13 F.4th 1361, 1379 (Fed. Cir. 2021)).
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