Expert’s “Petal-Plucking Exercise” Warrants Exclusion of Comparable Licenses

The court granted defendants' motion to exclude the testimony of plaintiff's damages expert regarding non-comparable licenses. "[The expert's] thinking here is hard to follow. She identifies five documents as the core of the market analysis approach, then disclaims any reliance on them, then says they are nevertheless suggestive of a reasonable royalty range, and then discards that range from use in her final damages number. This 'I like it -- I like it not' petal-plucking exercise is hardly the grist of admissible expert opinion. . . . This testimony bar applies across the board, including any attempt to mention the non-comparable licenses as 'background' evidence. [Plaintiff's] and [its expert's] unwillingness to say that she relied on the licenses -- apparently based on a recognition that they would not qualify as comparable licenses under the Federal Circuit’s precedents -- leaves no room for some sort of soft or 'suggestive' reliance."

Open Text SA v. Box, Inc. et al, 3-13-cv-04910 (CAND January 23, 2015, Order) (Donato, J.)