In a recent memorandum order, Judge Richard G. Andrews denied plaintiff’s Daubert motion to exclude a portion of defendant’s damages expert’s testimony, in which he “opined that the inclusion of the allegedly infringing Showcase/Flowcase . . . feature in iTunes and the Top Sites feature in Safari did not have a positive impact on Apple revenues.” Robocast, Inc. v. Apple Inc., C.A. No. 11-235-RGA (D. Del. Jan. 14, 2014). Plaintiff argued that the damages expert’s opinion was unreliable and should be excluded because he “failed to account for certain variables,” which included “the increasing use of iPhones, Spotify, and Pandora.” Id. at 2. Plaintiff asserted that such “countervailing variables could have masked the positive impact caused by the accused features.” Id. Judge Andrews, however, rejected plaintiff’s argument, explaining that the damages expert’s opinion was merely that “there was a statistically significant decrease in the rate of change of revenue after the addition of Showcase.” Id. According to Judge Andrews, this opinion logically suggests that the Showcase/Flowcase features “did not cause an increase in the rate of change of revenue.” Id. Judge Andrews concluded that the fact that the damages expert did not account for these other variables “goes to the weight of the testimony, not its admissibility, and is properly left to the jury.” Id. at 3.
Robocast, Inc. v. Apple Inc., C.A. No. 11-235-RGA (D. Del. Jan. 14, 2014).
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