Motion to Exclude Damages Expert Granted

Magistrate Judge Lane granted the motion as to the plaintiff’s damages expert, applying the recently amended FRE 702, which requires that the proponent bear the burden of showing the expert testimony more likely than not complies with the rule. He concluded that the plaintiff’s expert was improperly using sales of products which were not accused of infringement as the royalty base to determine damages, rejecting the expert’s opinion, which relied on the premise that because the accused features allowed Microsoft to achieve more of a specific, albeit unaccused feature on a server, that the accused features could be valued based on the amount of a specified unaccused feature on the network.

Bad Hair Day: JMOL & MNT in Trademark Case

My wife took out a restraining order preventing me from running a picture of her hair in the ’80s for use in this post about the I&I Hair v. Beauty Plus case. My sister, however, wasn’t as quick, so it’s this 1989 shot of us and our hair that introduces this order by Judge Lynn granting part of the defendant’s renewed motion for judgment as a matter of law and cutting the jury award from $2.57 million to $0.07 million.

“Train Wrecks” in Marshall – Damages Retrial Ordered

It’ll be a busy week clearing the wreckage of my practice from a couple of days out of the office for seminars on EDTX and WDTX practice, and a memorable meet and greet for the visiting president of the Union Pacific Railroad who visited Marshall last week, and hosted us on her train (shown above) for lunch. But when I returned to the office this morning this order by Judge Gilstrap granting a damages retrial due to a guaranteed “train wreck” of a different kind was quietly glittering at the top of the stack.

Motion for Summary Judgment of Noninfringement Granted

Following claim construction, Judge Lynn granted summary judgment of noninfringement on three of the five asserted grounds, and on the claim of willful infringement. She declined to grant summary judgment in favor of the defendant on its invalidity claims, and also granted in part a motion to exclude portions of the plaintiff’s damages expert’s testimony.

Pretrial Rulings in Fall Line Patents Case     

I had a great time at the recent planning meeting for the upcoming EDTX bench/bar conference in October. Pretrial rulings in this case were the subject of some gossip among the participants, so I went back and studied those I had not posted on previously, including SJ, experts, and a “novel” standing/subject matter jurisdiction argument. (And “novel” not in a good way).

Motions For Summary Judgment Denied

Not as exciting as seeing Tiger 131 in the flesh at “Tankfest” in Bovington last month was Judge Payne’s denial of all three motions for summary judgment filed by the parties in this case.  They consisted of a motion for partial summary judgment of noninfringement, a motion for summary judgment of no pre-suit damages, and a motion by the plaintiff for partial summary judgment that the defendant practiced certain limitations of the patents.