Expert’s Apportionment Based on Marketing Material Word Count Excluded as Unreliable

The court granted plaintiff's motion to exclude the testimony of defendant's damages expert concerning apportionment because his "relative marketing emphasis theory" based on word counts of market materials was unreliable. "[Plaintiff] asserts that [defendant's expert] has employed a novel and untestable approach to further reduce the royalty rate to which [plaintiff] might be entitled. . . . [The expert] counted the total words in certain sections of the marketing brochures and then selected certain words which related to the asserted patents. He then counted the number of chosen words and calculated the proportion of these words to all words to assign a value to solely the patented features in the Accused Devices. . . . [I]t is unclear whether the sophisticated buyers of the Accused Devices rely on these marketing brochures in deciding whether to purchase the products. [Defendant] has not presented any evidence to tie the specific portions of the marketing brochures to the asserted patents. Neither [the expert] nor [defendant] has been able to point the Court to this type of methodology being accepted by or even utilized by other courts or experts in this field. [The expert] himself acknowledged that there was no way to calculate an error rate using this methodology.. . . [The expert's] methodology cannot be tested, has not been subjected to peer review, has no known error rate, and, as far as the Court is aware, has not been generally accepted in the relevant scientific community. These are deficits that cannot be cured on cross-examination."

Omega Patents, LLC v. Calamp Corp., 6-13-cv-01950 (FLMD December 23, 2015, Order) (Byron, J.)