On January 14, 2020, United States District Court Judge Alvin K. Hellerstein (S.D.N.Y.) denied Plaintiff Michael Philip Kaufman’s motion to exclude testimony from Defendant Microsoft Corporation (“Microsoft”)’s damages expert, finding that Plaintiff’s objections would be more properly raised during cross-examination.

Defendant’s expert, Dr. Jeffrey A. Stec, opined that Microsoft would have made a single lump sum royalty payment of no more than $230,000 to Kaufman during the parties’ Georgia-Pacific prescribed “hypothetical negotiation” to license the patent-in-suit.  In arriving at this conclusion, Dr. Stec relied, in part, on a settlement agreement from a lawsuit brought against Microsoft by Advanced Dynamic Interfaces (“ADI”).

Plaintiff argued that Dr. Stec’s opinion should be excluded because “Stec failed to take into account the particular posture of the ADI [l]itigation and how that might have affected the ADI [l]icense’s comparability to the [h]ypothetical [l]icense.”  While acknowledging that courts have excluded expert testimony for making “similar omission,” Judge Hellerstein distinguished those exclusions as suffering from “numerous other infirmities” not present here, and concluded that Kaufman’s challenges regarding the ADI license were best saved for cross-examination.

The case is Kaufman v. Microsoft Corp., No. 16-cv-02880 (AKH) (S.D.N.Y. Jan. 14, 2020).