Golden Bridge v. Apple: No Third Bite at the Apple as Damage Expert Excluded After Two Failed Reports and Where Trial Was Already Underway

by Jeffer Mangels Butler & Mitchell LLP

Two weeks earlier, the court excluded the expert opinion and testimony of Plaintiff Golden Bridge Technology's ("GBT") damages expert. Nonetheless, the court gave GBT one week to submit a new report based on a new theory. After GBT met its deadline, Apple moved to exclude the second report as well.

As explained by the court, "Apple's motion points out several of the significant flaws in Schulze's current report: (1) Schulze improperly and sub silencio allocated the entire value of Apple's portfolio licenses with Ericsson and Nokia to a tiny subset of a subset of a subset of a subset of the patents and standards in those portfolios; (2) Schulze improperly tripled the per-unit rate that Apple would have paid to GBT based on purely academic articles; (3) Schulze improperly failed to compare the patent-in-suit's technical merits to those of other standards essential patents and (4) Schulze improperly failed to allocate any value to the non-license terms of the Ericsson and Nokia agreements."

The court then focused on the first of the these arguments and found that the error in analyzing the licenses was failed to the expert report. "The portfolio license agreements that undergird Schulze's calculations covered "all standards essential patents" owned by those companies. These patents cover a wide array of technologies beyond the WCDMA standard, including but not limited to Wi-Fi, GSM, and LTE. Yet in calculating a reasonable royalty, Schulze begins with the premise that the under both agreements, "Apple was granted a license to all Nokia[/Ericsson] patents that are essential to the WCDMA standards." This statement, while true, does not account in any way at all for the many other SEPs to which Apple was also granted a license. When pressed in deposition, Schulze admitted that he focused on the '793 patent and attributed no value whatsoever to patents essential to other standards because in his estimation, their value would be "marginal," though his report does not acknowledge this omission, let alone attempt to explain it. At the hearing on this motion, counsel for GBT attempted to explain this omission by explaining that, at the time of the agreements "the [W]CDMA standard is what was being used in connection with the iPhone and iPad units accused here." This explanation might have been sufficient if Schulze had cited any evidence supporting it in his report, but he did not."

The court went on to explain that "[u]nder established Federal Circuit law, an expert may not rely on broad licenses that cover technologies far beyond the patents-in-suit without accounting for the differences in his calculations.7 That is precisely what Schulze did not do here, resulting in a fundamentally unsound calculation. That the entire dollar value of the Apple-Ericsson and Apple-Nokia agreements stemmed entirely from the actually-essential (not just declared essential) WCMDA patents (not those related to other active standards) relating to terminal devices is an implausible assumption to begin with, and Schulze does not even attempt to justify this assumption. Each of the other errors identified by Apple then compounded this basic error, with the end result that 'there is simply too great an analytical gap between the data and the opinion proffered' to allow its admission."

The court then ordered that GBT's damage expert would not be permitted to testify at the upcoming trial. "Schulze will not be permitted to testify in the upcoming trial. With the jury already picked and trial underway, Apple would suffer undue prejudice if GBT were to offer a new damages expert with yet a third theory, to which it would have had no meaningful time to respond. However, GBT is free to offer evidence of its damages from other, fact witnesses."

Golden Bridge Technology v. Apple Inc., Case No. 5:12-cv-04882-PSG (N.D. Cal. June 1, 2014)


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Jeffer Mangels Butler & Mitchell LLP | Attorney Advertising

Written by:

Jeffer Mangels Butler & Mitchell LLP

Jeffer Mangels Butler & Mitchell LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.