Expert’s Use of Market Share as a Proxy or Bargaining Strength Does Not Render Testimony Unreliable

The court denied defendants' motion to exclude the testimony of plaintiff's damages expert regarding a reasonable royalty as unreliable because she used market shares as a proxy for the parties’ relative bargaining strength. "Defendants offer a variety of third-party sources suggesting that market share can be used to estimate bargaining position. This is not a misapplication of the Nash Bargaining Solution . . . or the 25% Rule. . . . Here, whatever her other shortcomings, [plaintiff's expert] grounds her analysis in the relative market shares of the parties, the DAS industry, the asserted patent, the parties’ profitability, competition between the parties, and [plaintiff's] unwillingness to relinquish market share."

Corning Optical Communications Wireless Ltd. v. Solid, Inc. et al, 5-14-cv-03750 (CAND September 24, 2015, Order) (Grewal, M.J.)