Tuesday, July 12, 2011

25% Apportionment Factor Based on Past License And Not Industry Rule of Thumb Does Not Offend Uniloc

The court denied defendants' motion in limine to exclude portions of plaintiff's damages expert's testimony. "As [plaintiff's expert] explains in his report, in 1996, [a third party and a defendant] entered into a license agreement in which [defendant] agreed to pay [the third party] a royalty equal to 25% of the manufacturing cost savings that resulted from [defendant's] use of the licensed technology. Rather than relying on the industry 25% rule of thumb rejected in [Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1317 (Fed. Cir. 2011)], [plaintiff's expert's] use of a 25% apportionment factor is instead based on an actual, arms-length license agreement entered into by [defendant] -- who is a party to the hypothetical negotiation in this case."

Convolve, Inc. v. Dell Inc., et. al., 2-08-cv-00244 (TXED July 8, 2011, Order) (Everingham, M.J.).

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