Dynetix Design Solutions, Inc. v. Synopsis, Inc., 2013 U.S. Dist. LEXIS 120403 (Aug. 22, 2013)
At the recent AICPA conference in Las Vegas, plaintiff damages experts working on patent infringement cases repeatedly complained that courts were quick to dismiss their lost profits and reasonable royalty calculations as inadmissible under Daubert but slow to set forth workable guidelines. "Tell us how it should be done, not just that it can't be done this way," they said.
The recent Daubert ruling (N.D. Cal.) in Dynetix wrestled with the plaintiff expert's use of the "smallest salable unit featuring the patented device." Although it does not provide the magic formula, it does reveal the court's appreciation of the "exceedingly difficult and error-prone task" experts face in performing an admissible apportionment analysis when calculating a reasonable royalty. The court agreed with the defendant that the competing expert had improperly calculated the royalty base by using sales data from the defendant's entire product even though the latter included many more components than the patented feature. In fact, the protected part was optional.
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