Area of Law:
Patent Law. Plaintiff, Better Mouse Company, sued Steelseries Aps, among other defendants, for patent infringement.
Better Mouse Company moved to strike portions of the Rebuttal Expert Report and testimony of Richard Eichmann, Defendant’s damages expert. Better Mouse Company moved to strike on the grounds that Eichmann’s forward citation analysis was flawed because it ignored citations to related patents with similar disclosures.
The Eastern District of Texas, in Better Mouse Company, Llc v. Steelseries Aps et al, No. 2:14-cv-198-RSP (Magistrate Judge Roy Payne) (Jan. 16, 2016) considered a motion to strike the expert report and testimony of Defendant’s damages expert, Richard Eichmann.
Plaintiff asserted that Eichmann’s forward citation analysis was flawed. Specifically, Plaintiff argued that Eichmann ignored related patents with similar disclosures and thus unacceptably underrepresented the number of relevant forward citations in his forward citation count. In support of its motion, plaintiff cited a Northern District of California case, Oracle, for the proposition that failing to include citations to patents with identical disclosures was a fatal flaw. Oracle Am., Inc. v. Google Inc., No. C 10-03561 WHA, 2012 WL 877125, at *2 (N.D. Cal. Mar. 15, 2012). Defendant responded that forward citation analysis was widely accepted in economic literature and that Eichmann’s analysis was consistent with the literature.
The Court denied the motion to strike. It reasoned that Eichmann’s testimony was sufficiently relevant and reliable to clear Daubert.
The Court found Eichmann’s testimony was relevant because he tied the asserted patent to the comparable license used in the forward citation analysis. Defendant’s expert tied the asserted patent to the comparable license by agreeing with the technical analysis of Plaintiff’s infringement expert, which found that the asserted patent was comparable to four patents in the comparable license. The court also dismissed Plaintiff’s reliance on Oracle, stating, “[n]o binding authority states that forward citation analysis is per se not relevant to the facts of any case.” Because Defendant submitted evidence that forward citation numbers correlate to patent value, Plaintiffs could not prevail on an argument that forward citation analysis was per se not relevant.
The Court also found that Eichmann’s forward citation analysis was reasonably reliable under Daubert. He used the analysis in typical fashion to get an indication of the value of the four comparable patents in the comparable license. Plaintiff’s means of redress here was to challenge the underlying data and the criteria Eichmann used to analyze that data, not to strike Eichmann’s testimony wholesale. Further, Eichmann was not required to perform independent analysis of what patents in the comparable license were comparable to the asserted patent. The court noted that he could rely on the analysis of Plaintiff’s infringement expert, so long as he believed the analysis regarding comparable patents was accurate, even if he disagreed with Plaintiff’s expert on other issues.