Judge Payne of E.D. Texas ruled to allow damages expert testimony despite defendants’ objections that the expert merely pointed to the technical expert’s position on apportioning the value of the invention. Although defendants claimed the apportionment was unverified and arbitrary, the court noted at least some basis in customer surveys and internal reports.
Here, the parties agreed that the patented feature was not the basis for customer demand, and so because the Entire Market Value Rule was not met, plaintiffs should apportion the value of the accused product between the patented and the unpatented features. Plaintiff’s expert, James Nawrocki, “attributes 30% of the value of the accused products to the asserted bus interface patents. Defendants argue that this opinion should be excluded because Mr. Nawrocki merely adopts the opinion of PACT’s technical expert, Dr. Tredennick, that “robust system I/O” accounts for 30% of the value of the accused products, without verifying the value or tying it more closely to the value of the patented features. Defendants also criticize Mr. Nawrocki’s interpretation of the evidence as being arbitrary and unreliable. In response, PACT describes the analysis and evidence supporting Mr. Nawrocki’s opinion. PACT contends that the 30% figure is derived from Xilinx’s customer surveys and internal reports, referred to as the “SLE” and “Boardwalk” reports. The Court finds that Defendants criticisms go more to the weight the jury should accord Mr. Nawrocki’s opinion, and not to its admissibility. Although Defendants largely disagree with Mr. Nawrocki’s interpretation of the evidence, Defendants have not shown that Mr. Nawrocki’s apportionment methodology is unreliable or that there are no facts to support his opinion.”
Pact XPP Technologies, AG v. Xilinx, Inc., et. al., 2-07-cv-00563 (E.D.TX,May 11, 2012, Order)(Payne)