Loss of Sale in Competitive Bid May Establish Lost Profits Causation Without Apportionment

The court denied defendant's motion for summary judgment that the entire market value rule did not apply and that plaintiff was required to apportion damages. "[T]rying to prove but-for lost profits in a case involving devices that may include dozens of distinct and possibly separately patented products can . . . be 'an exceedingly difficult' task, fraught with the risk of total failure. And a failure to apportion between asserted patents bears its own risks in those circumstances. Defendant . . . argues that . . . Plaintiff will fail. Plaintiff responds that the bid requirements of the major customers for whose business the parties compete, and Defendant’s marketing during that competition, show that the infringement was the but-for cause of the lost sales. . . . Defendant’s argument that Plaintiff inappropriately applies the entire market value is therefore not a search for a smaller physical unit or a request to exclude a follow-on sale, but a demand that Plaintiff show how much of its profit results from the patented features. Plaintiff has elected not to make that general showing, but instead seeks to convince the jury that in this particular commercial context, it would have made the sale but for the infringement. While the jury might not agree, Plaintiff has provided enough evidence in support of that theory to avoid summary judgment."

Universal Electronics Inc. v. Universal Remote Control Inc., 8-12-cv-00329 (CACD March 24, 2014, Order) (Guilford, J.)