Wednesday, October 19, 2016

Expert’s Apportionment Opinion Excluded for Relying on Consumer Survey Concerning Unrelated Features

​ The court granted defendants' motion to exclude the testimony of plaintiff's damages expert regarding apportionment as unreliable. "[Plaintiff's expert] essentially opines that the smallest salable unit of the Accused Products is the smartphone handset (not the internal chipset) and, in an effort to further apportion, constrains the total royalty base by a factor of one-tenth. He opines that this 10% factor adequately accounts for the proportion of total sales that is attributable to only the patented feature based on his review of results from two consumer surveys . . . that report that consumers value 'fingerprint scanning security' and 'data security and privacy.' Neither of the surveys seem to indicate customer demand for the digital watermarking technology. [The expert's] use of surveys is not unsound, but there is too great an analytical gap between the survey data and his apportionment factor of 10%, making his apportionment opinions excludable. . . . [The expert] did not separate out the patented feature and therefore did not adequately apportion. . . . He does not offer any 'credible economic analysis' to support his conclusion, making the 10% factor seemingly 'plucked out of thin air based on vague qualitative notions' and thus excludable."

Blue Spike, LLC v. Huawei Technologies Co., Ltd., 6-13-cv-00679 (TXED October 14, 2016, Order) (Clark, USDJ)

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