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Magistrate Judge Thynge Refuses To Limit Damages at Summary Judgment Stage

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Magistrate Judge Thynge granted in part and denied in part defendants’ motions for partial summary judgment regarding damages and motions in limine regarding the scope of plaintiff’s expert testimony on damages.


The Court denied the motion in limine to exclude expert damages calculations based in part on non-infringing product because excluding this testimony would involve the evaluation and determination of facts underlying the expert report, which the Court found improper at the summary judgment stage. Conversely, the Court excluded expert testimony that included AOL�s �Bring Your Own Access� service offering as part of the damages calculation due to the irrelevance of such testimony.

As to plaintiffs� motion for summary judgment to limit damages to infringing products only (and to exclude non-infringing sales from the analysis), the Court found it inappropriate to restrict the damages analysis at this stage. Op. at 17. Thus, the Court refused to substitute its judgment for that of the jury and denied to the motion. Under Georgia Pacific, said the Court, “calculating a reasonable royalty is not merely a function of the number of infringing systems, other elements [presumably convoyed sales of noninfringing product given the context] contribute to and influence the analysis.” Id.

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