Expert’s Unsupported Use of Windows Mobile as Proxy for Valuing Accused Android OS Justifies New Damages Trial​

Following a $3.5 million jury verdict, the court granted defendant's motion for a new damages trial because plaintiff's damages expert used an improper proxy for the operating system in the accused products. "[Plaintiff] based its damages analysis on the value of the Android operating system in [defendant's] accused products . . . [The expert] used an estimated value of the non-accused Windows Mobile operating system as a substitute for determining the approximate value of the accused Android operating system. . . . [T]he Court finds [the expert's] opinion that the Windows Mobile operating system could serve as an acceptable substitute for valuing the Android operating system to be conclusory and wholly unsupported by the evidence. The Windows Mobile operating system is clearly not the smallest salable patent practicing unit, as there is no evidence that it practices the patent and it was not an accused product at trial. At best, its alleged 2008 cost is roughly analogous to a comparable license. However, [plaintiff's expert] did not testify as to whether Windows Mobile is technologically or economically comparable to Android, and he failed to account for any differences between the two products. Absent such testimony, the Court concludes that [plaintiff] failed to offer sufficient evidence for the jury to find that Windows Mobile is an acceptable economic substitute or that it bears any relationship to 'the incremental value that the patented invention adds to the end product.'"

Core Wireless Licensing SARLl v. LG Electronics, Inc. et al, 2-14-cv-00911 (TXED August 23, 2016, Order) (Gilstrap, USDJ)