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In Case You Hadn’t Heard…Judge Posner Dismisses the Experts and the Case

August 24th, 2012 by Keith Hock

Are you an Apple devotee who swears by your iPhone?  Or are you attached to your Android?  Regardless of your cell phone allegiance, one of the battles over the alleged infringement of cell phone patents recently came to an end.  Judge Richard Posner issued two rulings in Apple, Inc., et al. v. Motorola, Inc., et al. that, among other things, excluded damages testimony by experts from both sides and dismissed the competing infringement claims with prejudice (a ruling that both sides are now appealing).  The full text of the two opinions can be found here and here.

In the introduction to his decision excluding most of the parties’ damages experts’ testimony, Judge Posner writes,

The biggest challenge to the judge at a Daubert hearing…is to distinguish between disabling problems with the proposed testimony, which are grounds for excluding it, and weaknesses in the testimony, which are properly resolved at the trial itself on the basis of evidence and cross‐examination.

He goes on to determine that the opinions offered by both parties’ experts contained “disabling problems”, that, in general, included the following:

  1. The testimony “violates the principle that a testifying expert must use the same approach (if it is feasible for him to do so) that he would use outside the litigation context.”
  2. The use of consumer surveys that were not “competently designed and administered” to provide relevant data regarding the value of the patented features to consumers.

In addition, Judge Posner also noted that the disparity between the damage claims of the two parties (a factor of 140 for one patent) was, itself, a “…warning sign.  Either one of the experts is way off base or the estimation of a reasonable royalty is guesswork remote from the application of expert knowledge to a manageable issue within the scope of that knowledge.”

While most attorneys may focus on the injunctive relief issues discussed in the second opinion, Judge Posner’s exclusion of the damages experts in the first opinion is the latest in a series of patent cases that have addressed damage claims and related expert opinions.  Attorneys who understand the impact of these cases on damage claims can help to insure that their experts and damage opinions are consistent with the most recent guidance from the courts.  Otherwise, a judge might decide that the, “problem is not that damages cannot be calculated, but that…the parties…failed to make a responsible calculation.”

How have the recent patent damages decisions affected your work with experts to prepare damage claims for your clients?

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