Expert’s Failure to Consider Noninfringing Alternatives Warrants Summary Judgment of No Lost Profits

The court granted defendant's motion for summary judgment of no lost profits damages because plaintiff failed to establish a dispute of material fact regarding the lack of commercially acceptable non-infringing substitutes. "[Plaintiff] concedes that its expert did not consider whether there are acceptable non-infringing alternatives. This is a significant concession, as it is [plaintiff's] burden under the [Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir. 1978)] test to prove a lack of such alternatives. In the absence of expert testimony supporting [plaintiff's] claim, summary judgment is appropriate."

Protegrity Corp. v. Voltage Security Inc., 3-10-cv-00755 (CTD December 31, 2013, Order) (Chatigny, J.)