To rely on royalty rates of third party licenses as a basis for his damages opinion, an expert must first establish the comparability of the licenses. "[I]f [defendant's expert] attempts to incorporate the royalty rates underlying the [third party] licenses into his testimony in front of the jury, [defendant] must first establish the comparability of licenses. It is not sufficient to state that both the [patent-in-suit] and the patents underlying the [third party] licenses cover hard disk drive technology. Rather, [defendant] must establish the functionality enabled by the [patent-in-suit], as well as the functionality purportedly covered by the licensed patent, and compare their economic importance."
Convolve, Inc. v. Dell Inc., et. al., 2-08-cv-00244 (TXED July 7, 2011, Order) (Everingham, M.J.)