Damages Calculation Based on Profits from Sales Made with Accused Gift Cards not Improper

The court denied defendant's motion to exclude the testimony of plaintiff's damages expert as to profits attributable to sales of accused gift cards. "According to [defendant], [plaintiff's damages expert] attributes all profits from purchases made with [the accused gift cards] to the cards themselves, without accounting for profits from sales that would have accrued even without the [accused gift] card, and [the expert] attributed all profits from sales involving gift cards to [defendant's] gift card program generally rather than allocating profits from the purported inventive feature of the asserted patent claims. . . . [Plaintiff] asserts [its expert] . . . isolates the incremental profit based upon a comparison of systems with and without the patented feature. . . . The Court has reviewed [the expert's] opinion and his asserted bases for it and concludes he utilizes the proper methodology set forth in Georgia-Pacific Corp. v. U.S. Plywood Corp., 318F.Supp. 1116 (S.D. N.Y. 1970). [Plaintiff's expert] relies on the evidence relating to [defendant] and includes an analysis of the incremental profits [defendant] receives from the infringing gift card systems compared to the non-infringing alternatives."

Alexsam, Inc. v. Best Buy Stores, L.P., et. al., 2-13-cv-00002 (TXED May 15, 2013, Order) (Craven, M.J.).