Damages Expert Testimony Based on Venue-Specific Statistics Excluded

The court granted in part defendants' motion to exclude the testimony of plaintiff's damages expert regarding a per-port royalty because his "Three-Step Risk Assessment Methodology" relied on venue-related statistics. "Defendants also condemn [the expert's] use of the 'various statistics regarding uncertainty' specific to patent litigation in the Eastern District of Texas. . . . Plaintiff contends that [his] use of venue-specific statistics is proper because all of the relevant settlements occurred in this District. Utilization of venue-specific statistics regarding uncertainty to adjust royalty rates is improper because the hypothetical negotiation assumes that the patent is valid and infringed. There should be no discussion of venue or win-loss statistics in a reasonable royalty calculation because venue plays no part in the hypothetical negotiation."

Network-1 Security Solutions, Inc. v. Alcatel-Lucent USA Inc., et al, 6-11-cv-00492 (TXED October 23, 2017, Order) (Mitchell, MJ)