MediaTek Inc. v. Freescale Semiconductor, Inc., Case No. 11-cv-5341 (Judge Yvonne Rogers) (June 20, 2014)
Attacking an expert's methodology may be appropriate in motions to exclude, but any disagreement with an expert's opinion or reliance on documents is better left for cross-examination at trial. Judge Rogers denied Defendant Freescale Semiconductor's motion to exclude certain testimony from Plaintiff MediaTek's damages expert because Freescale's attacks of the expert related to credibility and the weight of her opinion, which could all be cross-examined, rather than excluded.
Failure to Apportion damages:
Freescale first contended that the expert's damages opinion must be excluded because she did not apportion the damages to the portion of the chips accused of the practicing products and instead based her royalty rate on the entire value of Freescale's accused chips. MediaTek responded that it is not possible to separate the patent-practicing features from the remainder of the chips or to remove the accused features from the chips and sell them on their own. Freescale countered that the expert failed to account for the information known about the other chip components and failed to compare the allegedly infringing features to the undisputed non-infringing products.
Judge Rogers concluded that while there is a disputed issue requiring further evidence to determine whether it would be possible to apportion the value of the patented technology to the accused chip, none of this goes to admissibility. Instead, Freescale's attacks of the expert's conclusions and factual underpinnings all relate to the evidentiary weight.
Royalty Rate Analysis:
Second, Freescale argued that the expert's royalty rate analysis is unreliable and not based on sufficient facts or data. Specifically, Freescale contended that the expert's bases for the higher royalty rate—which are premised on MediaTek's strategy to compete with Freescale and the significant cost and disruption to Freescale's business if it could not obtain a license—are unsupported by evidence. Once again, Judge Rogers noted that Freescale's arguments go to the weight to be accorded to the expert's opinions rather than their admissibility. As was the case with the dispute over apportionment of damages, Judge Rogers again concluded that Freescale's criticisms are appropriate for cross-examination and not ground for exclusion.
Estimate of U.S. Share of Kindle E-Reader Sales
Finally, Freescale moved to exclude the expert's estimate of Amazon's Kindle U.S. Sales as unreliable, reasoning that the expert did not have actual data for sale of Kindles, only estimates from a third party analyst. MediaTek responded that in the absence of actual data, it was appropriate for the expert to calculate damages based on publicly available industry data showing the U.S. share of North American computers imported into the U.S. The Court noted that Freescale did not dispute the reliability of the data source used, only the expert's conclusions and opinions, which can all be clarified on cross-examination.
Finding that all of Freescale's arguments go to weight, Judge Rogers denied Freescale's motion to exclude.
The lesson? If you want to exclude an expert, casting stones against that expert's conclusion or analysis is not the way to do it.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
