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Majority Says EBITDA Valuations Buttress Damages Award

In business tort case involving unprofitable entity trying to market a trade secret, court upholds damages award; experts’ EBITDA valuations were based on commonly used method and numerous data sources, and experts linked data to conclusions, court says.

Pike v. Tex. EMC Mgmt., LLC

In business tort case involving unprofitable entity trying to market a trade secret, court upholds damages award; experts’ EBITDA valuations were based on commonly used method and numerous data sources, and experts linked data to conclusions, court says.

No ‘Circular Reasoning’ in Expert’s Lost Profits Calculation

Appeals court upholds lost profits award, finding expert’s damages model was admissible under Daubert; market survey was only one of “competing principles or methods” to gather facts on sales, and failure to use it does not make opinion per se unreliable.

Georgia-Pacific Analysis Satisfies Apportionment Requirement, Court Says

Court rejects Daubert challenge to lost profits and reasonable royalty analyses; court downplays importance of Panduit noninfringing-alternatives requirement and equates Georgia-Pacific analysis with apportionment between patented and unpatented features.

Defective Lost Profits Analysis Triggers Take-Nothing Ruling

High court discusses level of evidence required to establish future lost profits with “reasonable certainty”; plaintiff did not show it lost any contracts owing to defendants’ wrongdoing and failed to show profitability specific to claimed lost contracts.

Horizon Health Corp. v. Acadia Healthcare Co.

High court discusses level of evidence required to establish future lost profits with “reasonable certainty”; plaintiff did not show it lost any contracts owing to defendants’ wrongdoing and failed to show profitability specific to claimed lost contracts.

Federal Circuit Discusses Rationale Behind Different Measures of Damages

Federal Circuit says expert’s royalty analysis was not improper “pseudo” lost profits analysis that tried to circumvent higher standard of proof, where expert considered plaintiff’s profits as one of many factors in her hypothetical-negotiation model.

Mentor Graphics Corp. v. EVE-USA, Inc. (I)

Federal Circuit rejects challenge to lost profits award; patentee showed entitlement to lost profits from whole product by satisfying Panduit; although infringing product had multiple components, further apportionment in this case was not necessary.

Infringer’s Call for Apportionment of Lost Profits Goes Unheeded

Federal Circuit rejects challenge to lost profits award; patentee showed entitlement to lost profits from whole product by satisfying Panduit; although infringing product had multiple components, further apportionment in this case was not necessary.

Supreme Court Obfuscates Design Patent Damages Issue

Supreme Court agrees with Samsung that design patent infringement damages statute (Section 289) does not per se require infringer to pay profits from entire product but can be limited to profits from component(s) to which the protected design was applied.

Bombardier Rec. Prods. v. Arctic Cat Inc.

Court rejects Daubert challenge to lost profits and reasonable royalty analyses; court downplays importance of Panduit noninfringing-alternatives requirement and equates Georgia-Pacific analysis with apportionment between patented and unpatented features.

Georgia-Pacific Analysis Satisfies Apportionment Requirement, Court Says

Court rejects Daubert challenge to lost profits and reasonable royalty analyses; court downplays importance of Panduit noninfringing-alternatives requirement and equates Georgia-Pacific analysis with apportionment between patented and unpatented features.

Federal Circuit reacts coolly to ‘pseudo’ lost profits argument; royalty analysis may consider profits

The Federal Circuit recently found a reasonable royalty calculation that took into account the plaintiff’s profit margin was not a lost profits analysis in disguise. The plaintiff’s expert did not try to circumvent the “but for” causation requirement that applied to a lost profits claim.

Packgen v. Berry Plastics Corp. (II)

Appeals court upholds lost profits award, finding expert’s damages model was admissible under Daubert; market survey was only one of “competing principles or methods” to gather facts on sales, and failure to use it does not make opinion per se unreliable.

No ‘Circular Reasoning’ in Expert’s Lost Profits Calculation

Appeals court upholds lost profits award, finding expert’s damages model was admissible under Daubert; market survey was only one of “competing principles or methods” to gather facts on sales, and failure to use it does not make opinion per se unreliable.

Case Collapses When Experts Apply Wrong Measure of Damages

District court adopts Bankruptcy Court’s finding that expert testimony was inadmissible because the plaintiff’s experts used the wrong method to calculate damages; lost profits were not available where the plaintiff’s business was completely destroyed.

Court Sets Aside Big Lost Profits Award Based on Bad Yardstick Analysis

Court strikes down multimillion-dollar lost profits award, finding it was based on expert testimony that was “sheer surmise and conjecture”; using yardstick method, expert claimed upstart company would have achieved 50% of sales of market leader.

Court Sets Aside Big Lost Profits Award Based on Bad Yardstick Analysis

Court reconsiders earlier order for retrial on lost value damages, finding plaintiffs “had no intention of pursuing a realistic damages award” and lack admissible evidence supporting multimillion-dollar value claims; instead, court awards one dollar.

Berman v. Unimin Corp.

Court says P.I. expert properly based economic loss determination on plaintiff’s actual work situation at time of expert report instead of speculating about future earnings; testimony is helpful to jury because it explains issues not usually encountered.

Danmark v. CMI USA, Inc.

Federal Circuit says expert’s royalty analysis was not improper “pseudo” lost profits analysis that tried to circumvent higher standard of proof, where expert considered plaintiff’s profits as one of many factors in her hypothetical-negotiation model.

Samsung Electronics Co. v. Apple, Inc. (VI)

Supreme Court agrees with Samsung that design patent infringement damages statute (Section 289) does not per se require infringer to pay profits from entire product but can be limited to profits from component(s) to which the protected design was applied.

Federal Circuit Discusses Rationale Behind Different Measures of Damages

Federal Circuit says expert’s royalty analysis was not improper “pseudo” lost profits analysis that tried to circumvent higher standard of proof, where expert considered plaintiff’s profits as one of many factors in her hypothetical-negotiation model.

Supreme Court Obfuscates Design Patent Damages Issue

Supreme Court agrees with Samsung that design patent infringement damages statute (Section 289) does not per se require infringer to pay profits from entire product but can be limited to profits from component(s) to which the protected design was applied.

No Automatic Bar to Royalties Accruing After Life of Patent

Court finds expert’s use of two-supplier and market share methods as well as Panduit test generate admissible lost profits calculation; court also admits expert’s reasonable royalty analysis, saying it does not include unlawful post-expiration sales.

Court Distinguishes Between Proving Fact of Damage and Amount

Court upholds lost profits award, noting at trial plaintiff established “the fact of damages” with the requisite certainty; defendant deprived plaintiff of learning about job applicants, some of whom plaintiff would have hired to perform additional work.

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