Defendant's Failure to Prove Apportionment Between Infringing and Noninfringing Uses Bars Objection to Plaintiff's Damages Evidence Encompassing Both

The court denied defendant's motion to exclude testimony of plaintiff's damages expert as to royalty calculations that allegedly included all copies of the accused devices regardless of whether such devices practiced the patented method. "[W]here it is difficult to determine the precise apportionment between infringing and non-infringing uses, it is the infringer and not the patentee that bears the burden to produce data allowing for a proper apportionment. Because this burden was [defendant's], this Court will not penalize [plaintiff] or its damage expert when [defendant] did not produce such data in a timely manner and still contends that it need not have produced such data."

PalTalk Holdings, Inc. v. Microsoft Corp., 2-06-cv-00367 (TXED March 8, 2009, Order)