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.

Motion to Lift Stay Denied (No, A Different One)

Judge Pitman declined to lift the stay following the conclusion of an ex parte reexam that found twelve claims patentable because a third party had now filed an IPR as to the same patent. Plaintiff noted that six of the claims were not in the IPR, and the PTAB had declined to institute an IPR four previous times, but the court found persuasive it had this, the fifth, time.

Motion to Lift Stay Denied

Completing our Judge Pitman trifecta this morning is this order denying an opposed motion to lift the stay of this case against Google. The case had been stayed when Google appealed the 40 claims across two patents. The PTAB invalidated 38 of the claims and the plaintiff sought to proceed with the two remaining, choosing not to appeal the determinations as to the other claims. Google did choose to appeal the two it didn’t win on, so the court maintained the stay until the appeal of the rulings as to those two patents is resolved by the Federal Circuit. “Even if the Federal Circuit is statistically more likely to affirm the PTAB’s decision,” Judge Pitman wrote, “[t]his outcome is far from a foregone conclusion.”

Another Motion to Dismiss In A Trademark Case

But the procedural context is twisted in this case involving a whiskey distillery. The court previously remanded the state law causes of action, so the question presented was what to do with the dec action? After analyzing the Trejo factors which assist a judge in the discretionary call of whether to keep a case that has a parallel state court action, Judge Pitman concluded that all of the “federalism, fairness, and efficiency” factors weighed in favor of dismissal.