Judge Andrews finds damages expert’s apportionment analysis insufficient

In Comcast IP Holdings I LLC v. Sprint Communications Company LP, et al., C.A. No. 12-205-RGA (D. Del. Sept. 29, 2014), Judge Richard G. Andrews concluded that plaintiff’s damages expert had not adequately apportioned damages and thus the analysis was not admissible.

Defendants had filed a motion in limine seeking to exclude profits and or/revenues relating to the accused products, arguing that plaintiff’s damages expert had violated the entire market value rule because the products also contained unpatented features.  Plaintiff argued its expert had, in fact, apportioned revenues between the patented and unpatented technology in the products.  The Court had requested further submissions on this issue, including a proffer of this expert’s testimony.  Id. at 1.

The Court found the expert’s proffer insufficient.  The expert had identified three different functionalities of the accused products and noted that only one was “substantially implicated by the asserted patents,” but there was no indication that she had performed a “‘numerical calculation’ to arrive at a percentage to apply to the profits.  Apportionment does not seem possible without a numerical calculation. There is no evident apportionment in the proffer,” nor in the expert’s deposition or report. Id. at 2.

On the other hand, the Court recognized that its request for additional submissions had focused on whether the entire market value rule had been violated, and that, if it had specifically asked for more detail on apportionment, the subsequent submissions may have been different.  Therefore, the Court allowed plaintiff to submit a proffer “with some detail as to how much of the revenues and/or profits it apportioned to the patented technology, and what the basis for that apportionment is.”  Id.

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