I’m enjoying a quiet morning at Fern Lake outside Marshall watching the squirrels in the yard, the big heron out on the lake, and the judges refereeing discovery squabbles. First up is an interesting set of motions in Waco seeking to sub in a replacement validity expert, and compel an immediate deposition of a damages expert.
Judge Starr denied the motion to strike and exclude certain of the plaintiff’s damages expert’s opinion on all three asserted grounds.
Last week’s Sable v. Cloudflare omnibus order with pretrial rulings was so popular, let’s try another one. This week’s is in Flypsi v. Google, and includes the plaintiff going 0-5 on its SJ and expert motions, and Google topping it, going 0-8 on theirs, with one small asterisk (don’t go into Google’s total advertising revenue).
I guess you had to be there. I mean, literally. But here’s the box score on Judge Albright’s pretrial rulings in this case about to go to trial. Most motions to dismiss/SJ/Daubert denied (granted noninfringement of one patent), but some not, so some defenses remain for trial, and expert testimony is appropriately trimmed. A request for additional claim construction was granted in part.
Judge Payne denied the defendant’s motion to exclude testimony from the plaintiff’s damages expert (whose report was recently supplemented following the lifting of a stay), finding the referenced licenses sufficiently comparable, and that the apportionment had a sufficient basis.
This sentence was followed by a lengthy order by Judge Rosenthal excluding an expert and granting partial summary judgment in this trademark case, but, hey, I had you at “tequila” didn’t I?
It doesn’t get much better than a single order resolving nine summary judgment and Daubert motions. (But then, I kitbash tiny aircraft carrier models for fun). In a two-page order, Judge Albright denied three motions seeking to strike expert testimony and six motions for partial summary judgment, providing a brief description of each.
Judge Albright granted the motion ordering the defendant’s noninfringement expert to answer the plaintiff’s questions regarding his compensation, overruling his claim of “company confidentiality.” However redactions in the order mean that the exact contours of the issue and the ruling may not be clear.
Following his recent order deeming established the sales figures in certain third-party reports, the only issue remaining was whether the plaintiff’s reasonable royalty rates included a proper apportionment analysis. Judge Payne concluded that they did.
While not opining on whether the expert’s methodology was as good as mine as set forth in this article, Judge Payne did note that it was not challenged in this case. He granted the motion only to the extent that while the expert could testify as to the underlying facts that in his opinion tend to establish knowledge or intent, he was precluded from testifying as to the knowledge or intent of the defendant for indirect infringement.