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ARTICLES
Michael Jordan Awarded $8.9 Million for Use of His Likeness, But Will it Stand?
On Friday night, a jury in Chicago’s federal courthouse awarded Michael Jordan $8.9 million (of his $10 million claim) for Dominick’s use of his likeness in a magazine ad. The case involved the Illinois Right of Publicity Act and focused on a one-page ad and coupon that appeared in a special commemorative issue of Sports Illustrated sold at Dominick’s grocery stores. Safeway (who owns Dominick’s) reports that only two coupons were redeemed, and its expert opined that damages of, at most, $126,900 would suffice in light of their minimal use. The award is somewhat curious because Jordan’s damages expert based his $10 million damages claim only on what Jordan would seek, instead of what the parties might agree to in a hypothetical negotiation for Safeway’s actual use. In a Daubert ruling last month, Judge Blakey considered this damages claim, ultimately allowing it. The court explained that Plaintiff argued against the hypothetical negotiation test, claiming that damages should be defined by “fair market value” and that “the fair market value of a property right should not reflect the subjective value placed on that right by a particular buyer.” As such, Jordan’s expert “reviewed Jordan’s actual endorsements (regardless of the context or the ... Read MoreExpert’s Royalty Apportionment Based on Forward Citations Rejected
A California district court excluded opinions of a damages expert that attempted to apportion the reasonable royalty based on forward citations; i.e. the number of times each patent-in-suit has been cited as prior art by future patents. First, the Court finds that Plaintiff’s expert, Dr. Anne Layne-Farrar, “offers no explanation as to why the forward citation methodology is an appropriate measure of the value of the patents at issue in this case.” Since the analysis was not tied to the facts of this case, the methodology “has little more probative value than the ‘25 percent rule of thumb’ and Nash Bargaining Solution analyses that the Federal Circuit rejected in Uniloc and VirnetX.” Second, the Court explains that the expert only analyzed the six patents-in-suit, and hence “this methodology does not account for the value of the accused features as a portion of the accused products, but rather demonstrates only the value of each patent-in-suit relative to each other.” The Court finds that the expert “compares the forward citations of the patents-in-suit to one another as a method of apportioning a royalty base that quizzically does not take into account the infringing and non-infringing features in the accused products.” If this explanation is ... Read More“Another Batch of Experts, Another Batch of Expert Challenges”
So begins a district court ruling in Good Technology v. MobileIron. The Court’s EMVR lesson in this July 10, 2015, order is as follows: when Dauberting an opposing damages expert for failing to fully apportion the patented product in his reasonable royalty opinion, you had better identify the unpatented features and show how the product should be apportioned. Here, MobileIron’s expert, Richard Eichmann, identified one of Good’s products (the standalone AppCentral product, which is sold in larger product bundles) as having a close relation to the claimed functionality of the patent in suit. He then opines that the reasonable royalty would amount to the incremental profits from that product. Good first argues that Eichmann should have further apportioned AppCentral, which the Court rejects because (1) “Good fails to offer any evidence or counter-opinion that AppCentral can be further apportioned,” and (2) “Good merely points fingers” instead of providing support about non-patented features. As support, the Court cites VirnetX: “a patentee must take care to seek only those damages attributable to the infringing features,” and the “law requires patentees to apportion the royalty down to a reasonable estimate of the value of its claimed technology, or else that its patented technology drove demand ... Read MoreIVS v. Microsoft: Court Excludes Damages Opinions on License Comparability and EMVR
In this case where Microsoft’s Xbox and Kinect sensors are accused of infringing a facial recognition patent, the Virginia court excludes some opinions regarding the use of comparable agreements, the Entire Market Value Rule, and the basis for a lump-sum royalty. Plaintiff’s expert, Walter Bratic, opined that royalty damages should be a running royalty of 3x the court-ordered royalty rate from a prior case (Immersion/Sony) involving handheld controllers. Meanwhile, Defendant’s expert, Julie Davis, opined that Kinect-related settlement agreements (for lump sums) were the relevant data points. • Comparable licenses: The Court ruled that Mr. Bratic erred in finding the Immersion/Sony verdict and court-ordered royalty rate to be comparable. First, plaintiffs tried to “dodge” the fact that the technologies were different by merely pointing to the similarities in the patents instead of the specific implementations. Additionally, Mr. Bratic’s assertion that the patented technology was more valuable than the comparable license “is considerable evidence of the non-comparability.” This therefore leaves the Kinect-related settlements as the most useful data points and thus relevant under ResQNet. • Comparable licenses: The Court ruled it is improper for Mr. Bratic to rely upon 13 non-comparable Microsoft licenses to support his contention that a running royalty is the appropriate form. The ... Read More
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