We at IP Value Blog have been following the damages arguments in this case, about which the court has expressed some firm opinions. In July, the court excluded the opinions by Oracle’s expert Dr. Cockburn for several reasons, including a failure to apportion the demand for Google’s Android with respect to plaintiff’s Java platform and specifically the asserted claims. The court at that time gave suggestions on how Oracle should structure its revised damages opinions. After reviewing the revised opinions, the court now strikes Dr. Cockburn’s opinions on apportionment and a large portion of his second report.
As the court suggested in July, Dr. Cockburn started his assessment of a reasonable royalty with the $100 million licensing offer by plaintiff Sun, then apportioned this downward. For the apportionment, Dr. Cockburn analyzed the value of the claimed features with respect to the Android platform, but the court faults him for not analyzing the value of the claimed features with respect to the other components of value that made up the licensing offer that the parties were considering (citing a 2002 Medtronic case: Medtronic, Inc. v. Boston Scientific Corp., 2002 WL 34447587 at *12, D. Minn. Aug. 8 2002).
The court also faults Dr. Cockburn for conducting a patent-by-patent analysis of damages instead of a claim-by-claim analysis that the court had suggested. As such, the court precludes Oracle’s expert from presenting a claim-by-claim analysis to the jury, and will instruct the jury that it should assume that if they find any asserted claim not infringed, they may assume that the non-infringed claim represented the full value of that patent.
Having faulted Dr. Cockburn in July for lumping future damages in with past damages, the court now throws up its arms and just excludes Dr. Cockburn’s entire opinions on future damages, citing them as unhelpful since, this time, he failed to calculate them on a claim-by-claim basis (which the court finds necessary due to the possibility of design-arounds).
With much/most of Oracle’s first and second damages reports now stricken, the court has not yet decided on whether or not it will allow Oracle a third at-bat. Perhaps the court foresaw this mess when it decided to appoint its own damages expert last month.
Oracle America, Inc. v. Google Inc., 3-10-cv-03561 (N.D. CA, December 6, 2011, Order) (Alsup)