The court granted defendants' motion to preclude testimony by plaintiff's damages expert to the extent such testimony was based on the entire market value rule. "[Plaintiff] alleges that the operating systems’ multiple virtual workspaces and workspace switching features infringe the patents-in-suit. In invoking the 'entire market value rule,' [the expert] included 100% of [defendants'] total revenues from sales of subscriptions to the accused operating systems in his proposed royalty base. [The expert's] methodology however does not show a sound economic connection between the claimed invention and this broad proffered royalty base. The claimed invention is but one relatively small component of the accused operating systems. The evidence shows that the workspace switching feature represents only one of over a thousand components included in the accused products. . . . Most of [defendants'] accused sales come from their Server products, the majority of which are not connected to a display and thus do not take advantage of the workspace switching feature. [The expert] made no effort to factor out of his proffered royalty base these products which do not even feature the claimed invention. Once again, this blatant oversight shows that [the expert] did not use the type of reliable economic principles and methods required by Rule 702 for an economic damages expert."
IP Innovation, LLC. et al v. Red Hat Inc. et al., 2-07-cv-00447 (TXED March 2, 2010, Order) (Rader, C.J.)