Damages Expert May Consider Entire Price, Profit and Margin of Accused Product Without Showing Entire Market Value Rule Applies

The court denied defendant's motion to exclude reference to the entire price, profit, or margin of the accused chips. "Here there is purported evidence that the patents-in-suit are considered 'must have' technology. [LaserDynamics, Inc. v Quanta Computer, Inc., 694 F.3d 51, (Fed. Cir. 2012)] therefore supports the Court’s Summary Judgment decision that Uniloc does not 'foreclose[e] the use of these figures, and indeed, a number of them are necessary for [plaintiff's expert] to testify coherently on the issue of damages'. . . . Once [plaintiff] enters into evidence its basis for the argument that the patents-in-suit are 'must have' technology and this Court finds such evidence sufficiently reliable, then [plaintiff's expert] can provide her expert analysis. In doing so, [her] testimony shall only refer to total revenue, total profit, or total margin of the accused chips to start her analysis. Thereafter, she may refer to the total number of sales, total apportioned revenue, average price per chip, operating profit per chip, and apportioned profit per chip in making her calculations."

Carnegie Mellon University v. Marvell Technology Group, Ltd., et. al., 2-09-cv-00290 (PAWD November 5, 2012, Order) (Fischer, J.).