Consideration of Noninfringing Alternatives Does Not Constitute Inappropriate Rate Cap

The court denied plaintiff's motion in limine to preclude the testimony of defendant's damages expert because he capped the range of potential royalty rates. "[Plaintiff] asserts that [defendant's expert's] calculations . . . impermissibly 'establish[] a cap' on the range of potential reasonable royalty rates in the hypothetical negotiation by concluding that [defendant] would not pay a royalty rate higher than the cost associated with forgoing use of the infringing products and instead using available, noninfringing alternatives. . . . [The expert's] proposed testimony does not stem from the mistaken belief that infringement damages must be capped at the cost of using a noninfringing alternative. Instead, he examines the economic circumstances of this particular case, notes the availability of acceptable noninfringing alternatives to [defendant], and concludes that no other factors would compel [defendant] to accept a higher royalty rate during the hypothetical negotiations. Such analysis does not, as [plaintiff] contends, misapply the law on damages."

Kimberly-Clark Worldwide Inc. v. First Quality Products Inc., et. al., 1-09-cv-01685 (PAMD November 13, 2013, Order) (Caldwell, J.)