Judge Andrews has issued several orders in this litigation between AVM Technologies and Intel, which is approaching trial. In one order, Judge Andrews addressed whether Intel’s reverse doctrine of equivalents theory should be decided by a jury or the Court. After considering authority submitted by the parties that supported both positions, Judge Andrews determined that the issued should be submitted to the jury and “[i]f necessary, I will also make a determination in the alternative on the assumption that it is a question for the Court.” AVM Techs, LLC v. Intel Corp., C.A. No. 15-33-RGA, Memo. Or. at 1-2 (D. Del. April 29, 2017).
In another order, Judge Andrews determined that Plaintiff AVM Technologies could proceed with evidence at trial on its reasonable royalty theory because although the “disclosures and interrogatory answers may be inadequate . . . I do not think AVM acted willfully or in bad faith . . . [and] I am not persuaded that there is incurable prejudice to Intel by allowing Mr. Tran to testify [because] Intel has deposed Mr. Tran extensively on these subjects and there is nothing that AVM is proposing to present at trial (or that I will allow to be presented) that was not already disclosed. The proposed testimony and evidence are not new to Intel. On the whole, the Pennypack factors weigh in favor of admitting the testimony.” AVM Techs, LLC v. Intel Corp., C.A. No. 15-33-RGA, Memo. Or. at 1-2 (D. Del. April 30, 2017). Judge Andrews also found that AVM should be permitted to call Intel’s expert witness to testify on the issue if Intel did not call the expert. The Court further ruled that “if AVM does not put on an expert computation of damages, AVM cannot make arguments based on non-expert testimony that it could make based on expert testimony.” Id. at 2-4. These rulings stemmed from Judge Andrews’ previous exclusion of certain damages evidence, which left only limited testimony, a situation the Court characterized as: “‘Shoot for the moon, but remember that if you miss, you will be floating off into the inky blackness of space with no hope of survival or rescue.’ AVM shot for the moon, and, in my opinion, missed. The question now is whether it can survive. I think the answer is yes.” Id. at 1.