EcoFactor, Inc. v. Google LLC, Appeal No. 2023-1101 (Fed. Cir. Sept. 25, 2024)

The Federal Circuit’s only precedential opinion this week was a rare order that granted en banc review of a prior panel decision. Here, the Court agreed to review the panel’s decision relevant to evidentiary issues related to the calculation of damages in patent lawsuits.

Specifically, the Court considered whether the district court had adhered to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) when it allowed testimony from EcoFactor, Inc.’s damages expert, who had assigned a per-unit royalty rate to the three licenses in evidence. We previously wrote about this case (see here), which addressed various issues of infringement and admissibility that had arisen during a jury trial in which the jury found that certain “smart thermostats” offered by Google LLC infringed a patent owned by EcoFactor.

Google moved for a new trial, arguing that the testimony by EcoFactor’s damages expert was based on unreliable methodology, and that Google’s Daubert motion to exclude his testimony should have been granted. The district court denied the motion for a new trial and the Federal Circuit affirmed. The Federal Circuit found the expert’s testimony was not speculative or unreliable, and did not lack comparability or apportionment.

Next, the full Federal Circuit will review those issues, with briefing to start in 45 days from Sept. 25.

The full opinion can be found here.

By Mario E. Delegato