Biscotti Inc. v. Microsoft Corporation, 2-13-cv-01015 (TXED May 25, 2017, Order) (Payne, MJ)
Tuesday, May 30, 2017
Failure to Account for Economic Differences Between Standards-Essential License and Hypothetical License Warrants Exclusion of Expert Testimony
The court granted plaintiff's motion to exclude the testimony of defendant's damages expert regarding two prior licenses that the parties entered into under the HDMI standard as unreliable for failing to address the economic differences between the licenses and the hypothetical license-in-suit. "[Plaintiff] highlights the fact that [defendant] concedes that the HDMI standards setting organization 'imposes a patent non-assertion covenant and reserves the right to establish royalty fees.' While the Court declines to determine whether or not the HDMI licenses are subject to RAND obligations, the Court is persuaded that the economic differences between the HDMI licenses and the hypothetical license in suit (due to the fact that the HDMI licenses are standard-essential) are such that [defendant's expert] should have accounted for them. Failure to do so warrants exclusion."