On January 18, 2013 Judge Posner in the Northern District of Illinois issued a lengthy opinion in Brandeis Univ. v. Keebler Co., Case No. 1:12-cv-01508 (Doc. No. 474), covering both claim construction and a whole host of Daubert challenges.  One of those challenges related to plaintiff’s damages expert, whose testimony related to how difficult it would be to implement a non-infringing alternative, and thus the benefits of the patented invention relating to damages.  Judge Posner held, however, that the damages expert was not an expert on consumer demand (i.e. whether customers would prefer the patented cookies or some alternative), and moreover that the damages expert had not relied on anyone who was an expert in that field either.  While such an expert was employed by the plaintiff, the damages expert had not relied on the “industrial baker” expert, but rather a biochemist.  Accordingly, Judge Posner held that the damages expert could not testify to the absence of non-infringing alternatives, or costs thereof.

The damages calculation itself was also excluded, but much of the opinion in this regard is redacted, so it is not clear exactly what the specific flaws were.  At a high level, the plaintiff’s expert opined that the defendant would have paid a percentage of the profits that were “at risk” due to infringement, and that percentage of profits was derived based off of some prior licenses.  The Court seemed to find that the terms of those prior licensees would not be comparable absent accounting for the differences in sizes and licensed products.  The Court also struck opinions related to a settlement agreement as well.