Judge: Richard Schell
Holding: Motion to Strike Granted in Part As to Economist
In a prior ruling in this case, Judge Schell addressed the issue of pre-– suit damages, and defendants' argument that the plaintiff's failure to mark its product with the asserted patent precluded it from obtaining damages that predate the filing of the lawsuit. The Court determined that genuine issues of material fact existed regarding the plaintiff's compliance with the marking statute, and denied the motion for summary judgment on this issue. For the same reason, the Court denied the request to exclude the plaintiff's damages expert.
However, having previously determined that the plaintiff had failed to create a genuine issue of material fact with respect to whether the defendant sold or offered to sell the plaintiff's patented invention, except for the percentage of sales of the accused devices discussed in a specified declaration, the Court granted the defendants' request to exclude the expert's opinion regarding damages outside this percentage.
The Court noted that the parties were also in something of a snit over the weight to be given the experts conclusions. It observed that the expert could use evidence that was "reasonably relied upon by experts in the particular field in forming opinions or inferences on the subject" even if the evidence was not otherwise admissible, as provided for in FRE 703. However, it found that the remainder of the parties' arguments went either to the nature of the evidence relied upon, which was covered by Rule 703, or to the expert's resolution of the available evidence, which was sufficiently reliable, the court concluded, to support its admission. "Sorting through the competing conclusions drawn from the available evidence is a task best left to the jury," it wrote.