Survey Evidence Not Appropriately Focused on the Patented Technology May Be Excluded from a Patent Damages Evaluation

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Recently, the Court of Appeals for the Federal Circuit as well as the U.S. District Courts have been more closely scrutinizing the testimony of experts charged with determining damages for patent infringement. The result has been that certain tools that experts have historically relied on to determine damages have become either more difficult to use (for example, comparable licenses or the entire market value rule) or outright forbidden (for example, the 25% rule). Because of these changes, experts have begun looking for different tools to determine an appropriate damages measure. One "new" tool that has sparked much interest is the use of survey evidence to measure the value of a patented invention. Surveys have frequently been used in other types of litigation, such as antitrust or trademark litigation, but are less common in patent litigation.

Because such survey evidence has frequently not been used in patent litigation, there has been less guidance from the courts as to what is required for such surveys to be admissible. In Fractus, S.A. v. Samsung Electronics Co., Ltd.,1 Civ. No. 6:09-cv-203-LEDJDL (E.D. Tex. Apr. 29, 2011), the Eastern District of Texas excluded survey evidence from a patent damages calculation. The court found the survey evidence was not sufficiently tied to the patent-at-issue or the patented technology, but rather addressed the market as a whole. Because the surveys risked confusing the jury and resulting in an excessive damages award, the court excluded that evidence.

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