A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Damages

Court Excludes "Cobbled Together" Damages Theory Days Before Trial; Plaintiff Wins Infringement But No Damages Award

Andrew E. Russell, Nov. 18, 2021
Trial Expert Reports Damages Pennypack

Ouch.
Ouch. Emil Kalibradov, Unsplash

Back in September we wrote about how Judge Andrews rejected an expert who relied on a 50/50 starting point to show damages in a patent case. We noted at the time that the defendant had moved to strike any follow-up theory by the plaintiff, and it wasn't clear that the Court had ruled on it before trial began.

Now we know what actually happened. Yesterday, the Court released its opinion on the motion to strike. In its opinion, the Court explained that after the plaintiff lost its damages expert, the plaintiff tried to "cobble together" a damages theory from various facts on the Friday before trial. The Court struck that new theory:

[Plaintiff] NexStep …
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What Can a Patentee Do When the Court Excludes Its Damages Expert? Maybe Force the Other Side’s Damages Expert to Testify for the Patentee.

Andrew E. Russell, Oct. 29, 2021
Damages Experts Pennypack Daubert

With this case, the hits just keep coming...
With this case, the hits just keep coming... Mitya Ivanov, Unsplash

What do you do when your expert's damages opinion gets excluded, the Court rules you cannot proceed based solely on the factual evidence, and you bear the burden of proof?

According to an opinion from Judge Andrews yesterday, one option is to call the other side’s expert—even if the other side otherwise refuses to put her on the stand.

This Case Again?

We've actually talked about this case, Shure Inc. v. ClearOne, Inc., C.A. No. 19-1343-RGA-CJB (D. Del.), quite a bit at this point, including defendant's efforts to use DJ jurisdiction to keep part of the case out of Delaware, and plaintiff's effort …

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Judge Andrews Strikes Last-Minute Damages Report

David M. Fry, Oct. 27, 2021
Daubert Pennypack Damages

When it comes to supplemental expert reports, how late is too late?

In a case that's set for trial next month, Judge Andrews recently addressed the parties' objections to a number of orders and R&Rs issued by Magistrate Judge Burke. In one of those orders, Judge Burke granted a motion to exclude some of the plaintiffs' damages calculations as erroneous and unreliable.

The plaintiffs objected, and in the meantime, they served a supplemental damages report attempting "[t]o correct the flawed analysis" excluded by Judge Burke.

Judge Andrews not only overruled the objections, but also found that the supplemental report was submitted too late:

The report was filed less than three weeks before trial. . . . This is …
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Don't Overlook the Importance of Technological Comparability

David M. Fry, Sept. 29, 2021
Damages

Pop quiz: What's the easiest way to get prior licenses tossed from your reasonable royalty analysis?

Judge Andrews gave the answer today in a lengthy post-trial opinion in a case involving car seat technology. After determining that the asserted patents were valid and not infringed, he turned to damages.

Both parties relied on prior licenses that "deal generally with childcare products" to support their reasonable royalty analyses, including one "related to folding strollers" and one that "involves embedded chips that can alert a parent as a child safety feature[.]"

Judge Andrews disregarded both licenses because there was no evidence of technological comparability:

Neither party has made clear why the folded stroller in Scotty or the chip-based child safety feature of …
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Judge Noreika Permits Recovery of Damages for Some Non-Infringing, Extraterritorial Uses

Andrew E. Russell, Aug. 30, 2021
Foreign Sales Damages Jury Instructions Verdict

Globe
Gaël Gaborel, Unsplash

Judge Noreika today issued an an opinion regarding a damages jury instruction for an upcoming case. The case involves damages for products alleged to infringe a method claim, which are made or sold in the United States but used only abroad.

Judge Noreika noted that it was undisputed that the uses abroad cannot infringe:

It is well-established (and undisputed) that the manufacture, sale and offer to sell a method is not an act of infringement. . . . And it is also well-established (and undisputed) that patent law is territorial. . . . Thus, to infringe a method claim, the method must be performed in the United States. . . .
The issue here, however, is …
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Update on Judge Andrews' Order to File Settlement Agreements to Determine Damages After Default

Andrew E. Russell, June 22, 2021
Damages Settlement Agreements Default Judgment Settlement

Last month we wrote about Judge Andrews' order that a plaintiff who won a default judgment against Aston Martin, LLC must file any settlement agreements from seven other patent suits, in order to help the Court determine the proper damages award.

Plaintiff has now responded.

We wondered in our last post whether the Court would permit plaintiff to file under seal. The answer is yes: the Court found the following short paragraph from the briefing to be sufficient to permit filing the settlement agreements and settlement amounts under seal:

Good cause exists to seal these Settlement and License Agreements. The Agreements contain confidentiality clauses such that if the documents were not filed under seal, Plaintiff might be in breach …
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You Won a Default Judgment? Congratulations! Now File Your Settlement Agreements.

David M. Fry, May 19, 2021
Damages Settlement Agreements Default Judgment Settlement

Checkered Flag
Bas van den Eijkhof, Unsplash

Default judgments are uncommon in Delaware patent cases. In the rare instance where a defendant misses an answer deadline, the issue is typically resolved with minimal court intervention, either because the plaintiff agrees to an extension or the court sets aside the entry of default.

But in a recent case against Aston Martin, LLC (brought by Display Technologies, LLC), it appears that a default judgment might actually be moving forward. (Side note: it isn't clear to us whether the correct legal entity was sued or served, and we take no position on that front.)

The complaint was filed in February 2020, the summons was served in May, and the clerk entered a default in July. The plaintiff eventually moved for a default judgment in December, seeking an award of $75,000 to $1 million (based on damages estimates from a client affidavit).

On Monday, Judge Andrews recognized that it would "be necessary to have a hearing in order to determine the amount of damages[,]" but made clear that he wasn't going to take the plaintiff's word for the damages number ...

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Willfulness Evidence Comes In During Liability Phase, Rules Chief Judge Stark

Jeff Castellano, May 18, 2021
Bifurcation Damages Willfulness

In a recent order, Judge Stark ruled that evidence of willfulness would come in during the liability phase of a jury trial in which liability and damages are being tried separately. The ruling was one of several issued in the lead up to the June jury trial in Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC, C.A. No. 17-1390-LPS.

In his ruling, Judge Stark noted that "[t]he Court's interest in conservation of resources disfavors Defendants' request,"...

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Judge Connolly Tosses Damages Opinion Based on CEO's Testimony

Jeff Castellano, May 11, 2021
Damages Lanham Act False Advertising Daubert

In a recent Daubert ruling in CareDx, Inc. v. Natera, Inc., C.A. No. 19-662-CFC-CJB, Judge Connolly excluded the opinion of the plaintiff's expert regarding "corrective advertising damages," in part because it was based on "vague, undocumented, and back-of-the-envelope . . . estimates" by the plaintiff's CEO. The Judge granted the defendant's motion to exclude the expert's testimony under both Rule 702 and Rule 403, indicating that not only did the expert's opinion fail to satisfy the Daubert hallmarks for admissible expert testimony, it would also confuse the jury and be prejudicial because it "would essentially place the imprimatur of an expert on [the CEO] Maag's undocumented and dubious damages calculation."

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The Rare Daubert Motion That Consistently Succeeds

Nathan R. Hoeschen, March 18, 2021
Daubert Damages

Daubert motions are as tough as they are common. It seems every case spawns at least one on each side, and the vast majority are denied with the Court finding that any deficiencies in the expert's methodologies are merely grounds for exploration on cross-examination.

One type that consistently beats these odds (at least in Delaware) is directed to damages experts that attempt to use the damages figures from prior jury verdicts as starting points for a hypothetical negotiation.

Judge Andrews in particular has held a hard line on this issue as shown in his decision on Wednesday in Sprint Communications Company L.P. v. Charter Communications, Inc, C.A. No. 17-1734-RGA, D.I. 573 (D. Del. Mar. 16, 2021). …

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