The court excluded the opinions of plaintiff's damages expert as to a reasonable royalty for plaintiff's real-time display patent because the expert based his analysis on information obtained from plaintiff's principal technical expert. "Suppose [the damages expert] had been hired by [defendant] to advise on how at lowest cost [defendant] might obtain the functionality of [the asserted patent at issue] without infringing that patent. Obviously [the damages expert] would not have gone to the patentee for that information! For it would be in the patentee’s interest to suggest a method of inventing around that was extremely costly, because the costlier the invent-around, the higher the ceiling on a reasonable royalty. . . . So. . . imagine this imaginary conversation between [plaintiff's damages expert] and [defendant], which I’ll pretend hired [the damages expert] to advise on how at lowest cost to duplicate the patent’s functionality without infringement: [Defendant]: 'What will it cost us to invent around, for that will place a ceiling on the royalty we’ll pay [plaintiff]?' [Expert]: 'Brace yourself: $35 million greenbacks.' [Defendant]: 'That sounds high; where did you get the figure?' [Expert]: 'I asked an engineer who works for [plaintiff].' [Defendant]: 'Dummkopf! You’re fired.'"
Apple, Inc. v. Motorola, Inc., et. al., 1-11-cv-08540 (ILND May 22,
2012, Order) (Posner, C.J.).