Managing Director David Blackburn and Director B. Erin Crockett have published “Federal Circuit Reverses Damages Expert Exclusion Based on Causal Connection Between Royalty Base and Alleged Infringement,” in which they analyze the Federal Circuit’s conclusion that an expert damages opinion provided in the patent infringement matter Exafer Ltd. v. Microsoft Corporation was excluded in error.
Dr. Blackburn and Dr. Crockett explain that the case was initially dismissed due to Exafer’s damages expert’s use of “virtual machine hours” (VM-hours) as the royalty base, where VMs are software representations of physical computers that run on Microsoft Azure’s servers. The Federal Circuit disagreed and reversed the exclusion of Exafer’s damages expert, finding the approach could be reliable if it was a causal connection between the royalty base and the alleged infringement. As a result, the Federal Circuit vacated the trial court’s summary judgement for Microsoft and sent the case back for further proceedings.
