IP Newsflash

On August 15, 2016, Judge Orrick of the Northern District of California granted-in-part defendant Sophos’s motion to exclude the testimony of plaintiff Finjan’s damages expert. Sophos urged, among other things, that the expert’s apportionment methodology improperly inflated her royalty base. Specifically, Sophos argued that Finjan’s expert improperly inflated the royalty base by double or triple counting revenue attributable to the “threat engine” and “live protection” features of the accused software products. That is, Finjan’s expert apportioned the royalty base by 28.6 percent (or 2/7) as to both patents-in-suit, even though each patent covered those same two features. “In this way, [the expert] counts the revenue attributable to certain features multiple times in calculating her royalty base such that her total apportionment calculation uses a royalty base that is over 100 percent of the total value of several of the accused products.”

On April 18, 2016, Magistrate Judge Mitchell of the Eastern District of Texas granted-in-part a motion to exclude damages expert opinion based in part on a litigation verdict for failure to account for litigation-related economic circumstances.

Mars, Inc. and Mars Petcare US, Inc. (“Mars”) brought a patent infringement lawsuit against TruRX LLC and True Science Holdings, LLC (“True Science”) alleging infringement of two U.S. patents related to breath-freshening pet food compositions. True Science moved to exclude the testimony of Mars’ damages expert, Mr. Britven, for improperly relying on the verdict in a previous litigation involving Mars to support his reasonable royalty opinion. The Court granted the motion and excluded that testimony as unreliable.