Royalty Base Not Limited to Products Deemed to Directly Infringe

The court denied in part defendant's motion to exclude the opinions of plaintiff's damages expert as to a royalty base, and rejected plaintiff's argument that only directly infringing units could be considered. "[Defendant] argues that [the expert] uses an inadmissible unit base of every unit sold. . . . [and] emphasizes that no Apple units directly infringe. . . . [The expert's] 'all infringing unit' base is not methodologically flawed. [Defendant] does not cite to a single case suggesting that the royalty base of a hypothetical negotiation must be limited to units deemed to directly infringe. Such a rule makes especially little sense in cases like this one, where indirect infringement by the defendant is alleged and the bulk of the direct infringement alleged is that of third parties."

Emblaze Ltd. v. Apple Inc., 5-11-cv-01079 (CAND June 25, 2014, Order) (Grewal, M.J.)