Judge Andrews Grants Motion to Exclude Plaintiff’s Damages Experts

May 31, 2017

Publication| Intellectual Property

In AVM Technologies LLC v. Intel Corporation, C.A. No. 15-33-RGA (D. Del. Apr. 27, 2017), Judge Andrews granted the defendant’s motion to exclude testimony of two of the plaintiff’s damages experts as unreliable. One expert had opined on the speed benefit the defendant’s chips would have realized by allegedly practicing the patent-at-issue. As part of the expert’s analysis, the expert created five different tech models, relying on four representative circuits—one from each of the defendant’s products. The defendant argued that the expert’s opinion was unreliable because the expert failed to identify the speed-limiting circuits in his analysis of the slowdown of the chips. The Court agreed, finding that in order to calculate the degradation in the speed of the chip as a whole, the expert had to know that he was analyzing the speed-limiting circuit. The expert admitted to not knowing whether the representative circuits were speed-limiting circuits, and the Court found that “at best, [he] guess[ed] as to the amount by which the entire chip is slowed.” Judge Andrews went on to exclude a second expert’s damages testimony that was based on the unreliable tech models.

However, in an order dated April 30, 2017, the Court held that the plaintiff may call the defendant’s damages expert to give the jury a basis for a damages award, in the event that the defendant decided not to call her. The Court acknowledged that the plaintiff was “in a corner” with respect to a reasonable royalty, but should liability be found, the Court and the jury would benefit from hearing the expert’s opinions on damages.

Key Points: Judge Andrews continues to take hard looks at damages theories and their expert proponents.

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