Ericsson Inc. et al v. TCL Communication Technology Holdings Limited et al, 2-15-cv-00011 (TXED March 7, 2018, Order) (Payne, MJ)
Thursday, March 22, 2018
Expert’s Flawed Royalty Rate Analysis Requires New Trial on $75 Million Verdict
Following a jury verdict of $75 million, the court granted defendant's motion for new damages trial because the application of plaintiff's survey expert's results by plaintiff's damages expert was unreliable. "[Plaintiff's damages expert] directly translated the roughly 28% of survey respondents who allegedly would not have bought [defendant's] phone without the infringing feature to [defendant's] profit in an effort to determine the potential 'at-risk' profit. . . . [The expert] did not consider the numerous patented features on the accused phones, many of which a consumer would consider essential, assuming [another expert's] survey results were extrapolated. . . . [He] did not account for how his theory would result in the erosion of all of [defendant's] profit. Realistically, there are many features on a phone that would likely yield survey results similar to those obtained for the [patent-in-suit], e.g., ability to make a call, text messaging, Wi-Fi connection. To conclude that any one of these features -- simply because it is considered essential to a consumer -- could account for as much as a quarter of [defendant's] total profit is unreliable and does not consider the facts of the case, particularly the nature of smartphones and the number of patents that cover smartphone features."