Short Summary: Petition for permission to appeal order of district court excluding expert testimony denied.

Case: Rembrandt Soc. Media, LP v. Facebook, Inc., No. 2014-111 (Fed. Cir. April 7, 2014) (non-precedential). On appeal from E.D. Va. Before Prost, O’Malley, and Taranto.

Procedural Posture: Plaintiffs petitioned for permission to appeal an order of the district court that excluded Plaintiffs’ proffered expert testimony on damages under Daubert. CAFC denied the petition.

  • Damages: District Court correctly excluded proffered expert testimony because the expert (1) did not properly apportion revenue to the features actually causing the alleged infringement, and (2) improperly equated survey-result percentages about the importance to users of the various features of the accused infringing service with survey-result percentages of advertising revenue received, without adequate analysis. These “flaws infected the proposed royalty base as well as the royalty rate,” requiring exclusion of the expert’s testimony.
  • Interlocutory Appeals: The Federal Circuit exercised its discretion in denying the petition for permission to appeal. There was no evidence that review of the Daubertdecision would save the court’s or litigants’ resources or shorten the time to resolution of the case. The parties’ assertions of the possible value of an interlocutory appeal, such as the possibility of promoting settlement, were insufficient to support their petition.