MobileMedia Ideas, LLC v. Apple Inc., C.A. No. 10-258 - SLR, July 21, 2016.

Robinson, J. Defendant’s motion for summary judgment regarding damages is denied. The parties’ Daubert motions are also denied.

The disputed patents relate to cell phone technology. The patent-in-suit contains reexamined claims. The court considered whether intervening rights applied during the time between the date of issuance of the original claims and that of the reissued claims. The court finds that the scope of the claims remained substantially identical such that intervening rights do not apply in this case. The court decides that the patentee bears the burden of satisfying the marking requirement where there is a question as to whether the patentee ever marketed a product in the United States that practices the asserted patent. Defendant moved to exclude the testimony of Dr. Gareth Loy, who holds a Doctor of Musical Arts degree focusing on computer science, digital signal processing and computer systems as having no expertise in the pertinent field of navigation technology. The court finds that this expert’s experience with embedded systems and information processing is sufficient and denied the motion. Defendant’s motion to exclude the testimony of damages expert John Jarosz based on royalty rates from prior litigation is likewise denied. The court finds that and disagreements as to the factual assumptions and conclusions can be addressed on cross examination. A request to exclude certain survey results is denied. Finally, Plaintiff’s motion to exclude evidence of non-infringing alternatives is denied in that empirical evidence is not mandatory and courts generally accept opinion evidence.