Protegrity Corp. v. Voltage Security Inc., 3-10-cv-00755 (CTD December 31, 2013, Order) (Chatigny, J.)
Friday, January 3, 2014
Expert’s Failure to Consider Noninfringing Alternatives Warrants Summary Judgment of No Lost Profits
The court granted defendant's motion for summary judgment of no lost profits damages because plaintiff failed to establish a dispute of material fact regarding the lack of commercially acceptable non-infringing substitutes. "[Plaintiff] concedes that its expert did not consider whether there are acceptable non-infringing alternatives. This is a significant concession, as it is [plaintiff's] burden under the [Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir. 1978)] test to prove a lack of such alternatives. In the absence of expert testimony supporting [plaintiff's] claim, summary judgment is appropriate."