Expert Testimony Concerning Damages Excluded in Brandeis University, et al. v. Keebler

April 1, 2013

The plaintiffs accused cookie-maker, Keebler, of infringing a patent related to a cholesterol-free margarine. The plaintiffs sought reasonable royalty damages. Relying on expert testimony, Keebler argued that any reasonable royalty damages would depend on the costs to Keebler of switching to the best non-infringing alternative, such as potentially higher manufacturing costs or loss of business. Keebler argued that the plaintiffs' reasonable royalty damages were inflated by a wide margin because their expert failed to consider these costs. Keebler also argued that the plaintiffs' expert based her damages claim on a license agreement that was not comparable, and that she ignored the most comparable license agreement. The trial court excluded a large portion of the plaintiffs' expert testimony because plaintiffs’ damages expert “has not used a reasonable methodology to calculate the plaintiffs’ damages,” insofar as she failed to use comparable license agreements for the case and ignored potential non-infringing alternatives.

CLIENT TIP: Colleges and universities that have research and development mandates should view this case as instructive of the battle-of-the-experts approach to damages in a patent infringement case: An expert opinion that fails to consider appropriate comparables and ignores non-infringing alternatives will not withstand a challenge.