Chico's FAS, Inc. v. Wink Intimates et al, 2-13-cv-00792 (FLMD June 3, 2015, Order) (Chappell, M.J.)
Friday, June 5, 2015
Expert’s Opinion Excluded With Respect to Non-Comparable Licenses and Royalty Data
The court granted plaintiff's motion to exclude the testimony of defendant's damages expert regarding a reasonable royalty as unreliable where the expert relied on noncomparable third party license databases and industry reports. "The patents relied on by [defendant's expert] through the RoyaltySource database are not comparable to the patents-in-suit. Furniture, enzymes, spider silk, and the like have no bearing on the royalty estimations in this cami-bra case. [The expert's] reliance on incomparable patents is flawed and unreliable. . . . [Plaintiff] contends since it is impossible to determine from [a report based on the same data as the RoyaltySource database] what licenses are used to arrive at the rates provided, or to determine the terms of those specific licenses, [the expert] is unable to prove such data is comparable to the hypothetical licenses at issue in this lawsuit. . . . [T]he Court agrees with [plaintiff]. . . . Since [an industry] report covers generic evidence, rather than a specific product line such as bras, the evidence is not reliable. The Court takes issue, for instance, with how there is no way of knowing how many licenses are used to generate the data or details about the licenses."