Judge Andrews recently granted defendants’ (“Comcast”) motion to exclude two of plaintiff’s (“Sprint”) damages expert opinions, and Sprint’s motion in limine, which sought to preclude Comcast from “offering into evidence, referencing, or eliciting testimony about settlement and license agreements entered into by Comcast relating to comparable technology.” Sprint Communications Co. v. Comcast IP Holdings, LLC, et al., C.A. No. 12-1013-RGA (D. Del. Jan. 29, 2015), (D. Del. Jan. 30, 2015).
As to the motion to exclude, Judge Andrews excluded one damages expert’s opinion pursuant to FRCP 26(a)(2)(B)(i), because that expert concluded that “6.5 to 7% of Comcast’s IMS network related to the patented subject matter, but provided no basis for how he determined which features ‘related to’ the patent.” Judge Andrews explained that “[t]his determination provides the entire basis for [the expert’s] opinion, and thus require[d] at least some explanation.” Judge Andrews also excluded this opinion because the “analysis is not tied to the improvements attributable to the patented invention, and . . . is [therefore] unreliable for purposes of Rule 702.” Judge Andrews also found the other damages expert opinion unreliable despite considering Georgia-Pacific factors, given that it provided “no evidence that ties Comcast’s savings to the claimed invention.”
Addressing plaintiff’s motion in limine, Judge Andrews explained that the motion implicates “the second Georgia-Pacific factor, which looks at ‘[t]he rates paid by the licensee for the use of other patents comparable to the patent in suit.’” Judge Andrews concluded that the four licenses at issue were “not sufficiently comparable to the hypothetical licenses, and, to the extent the lack of comparability could be accounted for, [the expert] has not attempted to do so.” As plaintiff observed, “none of the licenses include the patents in suit, three of the four licenses are with non-practicing entities, and all four licenses grant rights to additional patents and include international rights. Additionally, three of the four licenses occurred a number of years after the hypothetical negotiation dates. Finally, three of the four licenses resulted from the settlement of litigation, and thus do not represent the behavior of two willing licensors, as would be the case in the hypothetical negotiations between Comcast and Sprint.”