Thursday, July 16, 2015

Apportionment Opinion Based on Forward Citation Analysis Excluded

The court granted defendant's motion to exclude the opinion of plaintiff's damages expert regarding apportionment using forward citation analysis. "Defendant seeks to exclude [the expert's] first apportionment methodology based upon academic literature suggesting that a patent’s value is strongly correlated with the number of times that patent is cited as prior art by future patents. . . . Most problematically, [plaintiff's expert] offers no explanation as to why the forward citation methodology is an appropriate measure of the value of the patents at issue in this case. Without facts tying her analysis to the facts of this case, [her] reliance on a methodology discussed in empirical economics literature has little more probative value than the '25 percent rule of thumb' and Nash Bargaining Solution analyses that the Federal Circuit rejected. . . . Surely a patent’s objective quality cannot be based on the number of times an inventor cites himself in prosecuting related patents. . . . Equally troubling is [her] assumption of a six-patent portfolio comprised of the six patents-in-suit in her apportionment analysis. . . . [T]his methodology does not account for the value of the accused features as a portion of the accused products, but rather demonstrates only the value of each patent-in-suit relative to each other."

Finjan, Inc. v. Blue Coat Systems, Inc., 5-13-cv-03999 (CAND July 14, 2015, Order) (Freeman, J.)

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