EDTX grants motion to exclude, gives plaintiff two days to provide new supplemental report

On March 8, Magistrate Judge Love granted a motion to strike the plaintiff's expert report and testimony, specifically its reference to the total revenue of Defendant Verizon's FioS system. Verizon's total revenue was $13B, which the expert reduced to $2.9B based on revenue data for a subset of FioS system, the LCoS switches within the system. The expert's methodology used the $2.9B value as the "base" for his reasonable royalty analysis. As part of the "rate" analysis, however, the expert acknowledged that at least 83% of the profits were not attributable to the patented invention.

Magistrate Judge Love, relying on Uniloc, held that it was improper to use the entire FiOS revenue as the base, that the plaintiff and its expert did not provide sufficient "affirmative support" for their position, and that lowering the royalty rate did "not alleviate" the problem. Magistrate Judge Love ordered a supplemental report for March 10 - just two days following entry of this order - and also ordered that the expert would be subject to an additional one hour of deposition.