The Sixth Circuit continued its string of Daubert decisions with ASK Chemicals v. Computer Packages, Inc. The only issue in the case was the amount of damages caused by the untimely expiration of a patent owned by ASK Chemicals after Computer Packages failed to pay the maintenance fees in Japan. The opinion affirms the district court’s finding that the future profit calculations of the defendant’s expert were speculative and unreliable because they relied heavily on an old marketing plan that was far removed from the current market situation. It states that calculating lost profits would require evidence of the size of the current Japanese market for this product, the company’s market penetration, as well as the company’s sales volume and the costs of production. In the absence of this data, lost profits could not be determined “to a reasonable certainty,” and so Judge Boggs’ opinion also finds that the district court correctly granted summary judgment to the defendant.
In concurrence, Judge Clay writes that the majority took too hard a line on the proof necessary to sustain a claim for lost damages under Ohio law, but agrees that the plaintiff failed to support its estimates about the size of the Japanese market for the product with any data.