Ericsson Inc. v. D-Link Corp., No. 6:10-CV-473, 2013 WL 2242444 (E.D. Tex. May 21, 2013).
There is no substitute for a considered and complete approach to reasonable royalty damages. Ericsson Inc. v. D-Link Corp., confirms this in the context of a standards case where the court decided the damages opinion did not run afoul of the EMVR.
Defendants moved to exclude opinions from Plaintiff’s damages expert, John R. Bone. Id. at *1. Plaintiff alleged infringement of two patented features of a standard. Bone relied on eight previous licenses under that standard to determine a per-unit royalty for each licensed product, then he applied that per-unit royalty to the accused products to calculate a reasonable royalty rate. Id. Defendants countered, contending Bone violated the EMVR because Plaintiff failed to prove the patented feature was the basis for customer demand and Bone failed to apportion the royalty base between accused and non-accused features. Id. at *1, *2.
The court concluded that, by considering only revenue from licenses under the standard, Bone reduced the revenue pool to the value of the contributions from the standard. Id. at *2. Bone then apportioned the value of the asserted patents over the standards portfolio by assuming those patents represented only 50% of the total value of that portfolio. Id. at *3. The court concluded this was “a realistic and thorough attempt to apportion revenue to only the asserted patents.” Id.
The court also concluded Bone’s opinion did not implicate the EMVR because the per-unit royalty rate he used remains constant and does not rely on the value of the end products. Id.