Post-Trial Objection to Royalty Base Undermined by Failure to Present Alternate Theory

The court denied defendant's motion for judgment as a matter of law on damages and rejected its argument that plaintiff implicitly invoked the entire market value rule at trial. "[W]hile [defendant] contests the royalty base, it failed to advance a credible alternative. . . . [Defendant] never produced any other testimony or evidence regarding how one should properly calculate the damages for the iOS devices, instead it relied solely on the upgrade price for a dissimilar product. If [defendant] had advanced a different theory showing the iOS device was not the smallest saleable unit, there may have been a different result.”

VirnetX Inc. v. Cisco Systems, Inc., et. al., 6-10-cv-00417 (TXED February 26, 2013, Order) (Davis, J.).