Damages Expert May Testify Concerning Running Royalty Cap

The court denied plaintiff's motion in limine to preclude the testimony of defendant's damages expert that a running royalty may be capped. "Georgia-Pacific factor #11 is '[t]he extent to which the infringer used the invention and any evidence probative of the value of that use.' Accordingly, [defendant] is free to argue, based on actual use of the patented method (i.e., the 'book of wisdom'), that a running royalty would not exceed a certain amount. But this is only one of several relevant factors in the reasonable royalty inquiry; [plaintiff] will have the opportunity to attack this opinion at trial and to emphasize other factors."

France Telecom S.A. v. Marvell Semiconductor, Inc., 3-12-cv-04967 (CAND August 28, 2014, Order) (Orrick, J.)