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Ferraro v. Convercent, Inc.

In contract and tort case, court declines to exclude plaintiff’s damages expert, noting court’s gatekeeping function “is not a role that emphasizes exclusion of expert testimony”; expert’s background in economics and business valuation experience qualified him to value subject company.

Court Says Daubert’s ‘Gatekeeper’ Role Favors Inclusion, Not Exclusion

In contract and tort case, court declines to exclude plaintiff’s damages expert, noting court’s gatekeeping function “is not a role that emphasizes exclusion of expert testimony”; expert’s background in economics and business valuation experience qualified him to value subject company.

Damages Claim Fails to Provide Yardsticks Capturing Defunct Startup’s Value

Appeals court upholds zero damages finding in dispute involving short-lived software startup, where plaintiff’s expert had no experience valuing software companies, misapprehended basic facts, and developed multimillion-dollar valuations for a company with no product, no revenue, and no investors.

Zaffarkhan v. Domesek

Appeals court upholds zero damages finding in dispute involving short-lived software startup, where plaintiff’s expert had no experience valuing software companies, misapprehended basic facts, and developed multimillion-dollar valuations for a company with no product, no revenue, and no investors.

Finjan, Inc. v. Blue Coat Systems, Inc. (II)

Federal Circuit strikes down portion of damages, finding expert’s royalty base was unsupported because she merely apportioned to the “smallest identifiable technical component,” which itself was a multicomponent software engine that performed both noninfringing and infringing functions.

Court Doubles Down on Apportionment for Multifunctional Smallest Salable Unit

Federal Circuit strikes down portion of damages, finding expert’s royalty base was unsupported because she merely apportioned to the “smallest identifiable technical component,” which itself was a multicomponent software engine that performed both noninfringing and infringing functions.

Proxy Disclosed Sufficient Valuation Data to Allow Informed Vote on Merger

Chancery says proxy gave disinterested shareholders sufficient information about valuation analysis underlying financial advisor’s fairness opinion to enable informed vote, and it dismisses breach-of-fiduciary-duty claims under business judgment rule.

Proxy Disclosed Sufficient Valuation Data to Allow Informed Vote on Merger

Chancery says proxy gave disinterested shareholders sufficient information about valuation analysis underlying financial advisor’s fairness opinion to enable informed vote, and it dismisses breach-of-fiduciary-duty claims under business judgment rule.

In re Merge Healthcare Inc. Stockholders Litigation

Chancery says proxy gave disinterested shareholders sufficient information about valuation analysis underlying financial advisor’s fairness opinion to enable informed vote, and it dismisses breach-of-fiduciary-duty claims under business judgment rule.

Complex Facts Test Patent Experts’ Apportionment Skills

Court admits apportionment based on lines of infringing code and on value defendant places on product features in accused products but excludes apportionment using forward citation analysis for failure to show value of asserted patents in marketplace.

Finjan, Inc. v. Blue Coat Systems, Inc. (I)

Court admits apportionment based on lines of infringing code and on value defendant places on product features in accused products but excludes apportionment using forward citation analysis for failure to show value of asserted patents in marketplace.

Federal Circuit Chides Defendants for ‘Improper’ Admissibility Challenge

Federal Circuit affirms lost profits and royalty award finding defendants raised questions of admissibility of plaintiff expert testimony in the “improper context” because these are Daubert issues; also plaintiffs’ lost profits theory meets Panduit requir ...

Versata Software, Inc. v. SAP America, Inc. (II)

Federal Circuit affirms lost profits and royalty award finding defendants raised questions of admissibility of plaintiff expert testimony in the “improper context” because these are Daubert issues; also plaintiffs’ lost profits theory meets Panduit requir ...

Patent Experts Have Limited Latitude to Comply With New Damages Standards

Expert’s present value calculus for patented software fails to meet post-trial federal decisions on evidentiary standards for proving damages in patent cases, but the court grants leave to “repair” the report to conform to new standards.

‘Value of Use’ in Copyright Infringement Cases Is Still ‘Difficult’ and ‘Evolving’

Federal district court excludes hypothetical royalty for copyrighted software based on expert’s failure to rely on any comparable licenses or adequately explain their differences from his estimated 35% rate.

Joyce v. Armstrong Teasdale, LLP (II)

Expert’s supplement report to comply with recent case law concerning sufficiency of proof to prove damages in patent cases fails for lack of qualitative evidence and comparable licenses.

Google Experts Also Err and Try to Add New Approaches

Federal district court strikes portions of supplemental reports submitted by defendant’s rebuttal witnesses, in part because the patent expert’s failed to analyze predecessors to the patents in suit and the copyright expert applied new methodologies.

Expert May Rely on Revenue-Sharing Agreement to Show Value, But Not Royalty

Court excludes portions of expert’s second, supplemental report for failure to explain technical and economic comparability of licenses used to calculate reasonable royalty damages in patent infringement case.

Real View, LLC v. 20-20 Technologies (I)

Federal district court excludes hypothetical royalty for copyrighted software based on expert’s failure to rely on any comparable licenses or adequately explain their differences from his estimated 35% rate.

Federal Court Strikes Portions of Its Own Expert’s Report

Last year, when a federal district judge (William Alsup) couldn’t convince the parties to select (and pay for) an independent expert, he enlisted the court’s powers under Rule 706 FRE to appoint an economics professor to calculate damages.

Dataquill Ltd. v. High Tech Computer Corp. (II)

Court excludes portions of expert’s second, supplemental report for failure to explain technical and economic comparability of licenses used to calculate reasonable royalty damages in patent infringement case.

Oracle America, Inc. v. Google Inc. (V)

Federal district court strikes portions of its own expert’s report on patent damages for failing to apportion damages among the patented and unpatented features of the in-suit IP.

On the Second Try, Oracle’s Expert Still Doesn’t Get It Right

Court sends plaintiff’s expert back for a third try at apportioning infringement damages between patented and unpatented features of technology system (Android), on a claim-by-claim basis.

Oracle America, Inc. v. Google Inc. (IV)

Federal district court strikes portions of supplemental reports submitted by defendant’s rebuttal witnesses, in part because the patent expert’s failed to analyze predecessors to the patents in suit and the copyright expert applied new methodologies.

Oracle America, Inc. v. Google Inc. (III)

Federal district court strikes portions of plaintiff’s expert’s third and final damages report under Daubert, including the "upper bound" value of his apportionment analysis, his determination of market share based on consumer surveys, and his "independen ...

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