AVM Technologies LLC v. Intel Corporation

Filing 283

MEMORANDUM OPINION re 191 MOTION to Exclude the Testimony of Larry Evans; Motion in Limine #2 (D.I. 240 , Ex. 15); and 161 Motion for Summary Judgment of No Damages. Signed by Judge Richard G. Andrews on 2/21/2013. (nms)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE A VM TECHNOLOGIES, LLC, a Delaware Limited Liability Company Plaintiff, v. Civil Action No. 10-610-RGA INTEL CORPORATION, a Delaware Corporation Defendant. MEMORANDUM OPINION Richard K. Herrmann, MORRIS JAMES LLP, Wilmington, DE; David Boies, Roseann C. Baxter, BOIES, SCHILLER & FLEXNER LLP, Armonk, NY; D. Michael Underhill, R chard S. Meyer, Edward H. Takashima, Patrick M. Lafferty, BOIES, SCHILLER & FLEXNER LP, Washington, DC; Matthew C. Lapple, LAPPLE IP LAW, P.C., Irvine, CA. Attorneys for Plaintiff A VM Technologies, LLC. Richard L. Horowitz, David E. Moore, POTTER ANDERSON & CORROON LLP, Wi mington, DE; William F. Lee, Lauren B. Fletcher, WILMER CUTLER PICKERING HALE AN DORR LLP, Boston, MA; David C. Marcus, WILMER CUTLER PICKERING HALE AND D RR LLP, Los Angeles, CA. Attorneys for Defendant Intel Corporation. February UJ, 2013 Presently before the Court are a number of motions, including Intel's Daubert Exclude the Testimony ofLarry Evans (D.I. 191), Intel's Motion for Summary Judgme t ofNo Damages (D.I. 161), and Intel's Motion in Limine (D.I. 240, Ex. 15, Motion in Limine 2, p. 3) to exclude testimony of Joseph Tran, an inventor of the '547 patent. Evans' proposed t stimony - that a reasonable royalty can be established by one litigation settlement agreement inv lving a different patent- is not reliable. AVM's proposed inventor testimony concerning dam es fares no better; it is mostly late-disclosed, unreliable expert testimony. Thus, Intel's Daubert motion will be granted; Intel's Motion in Limine will also be granted; but the Court will hold t e Motion for Summary Judgment of No Damages in abeyance pending a further conference with e attorneys.' To better understand the instant motions, a brief description of the procedural hi tory is helpful. On May 15, 2012, AVM submitted an expert report from Larry Evans relating o damages. In that report, Evans opined that AVM is entitled to reasonable royalty dama es of $150 to $300 million "or more." (D.I. 163 at Ex. 14 ~ 70). Intel filed its motion for su judgment of no damages on July 24, 2012. (D.I. 161). The Court held oral argument o summary judgment motion on September 28,2012. On October 31,2012, Intel filed aDaubertmotion to exclude Evans' testimony. (D.I. I ! I 191). The motion was fully briefed. (D.I. 192, 206, 212). On January 4, 2013, the Cou issued I an opinion, stating that the Court believed Evans' testimony should be excluded entire! but that I 1 The Court previously indicated it would deny the Motion for Summary Judgm nt of No Damages. (Pretrial Conference January 25, 2013) (undocketed). It also granted the Mo ion. (Docket Order of February 7, 2013). The Court now vacates the Docket Order. I I l I 't ~· 1 its decision would be better informed after hearing live testimony from Evans, subject t crossexamination. (D.I. 230 at 7). The Daubert hearing was scheduled for February 1, 2013 In connection with the pretrial order filed on January 18, 2013, Intel filed three otions in limine, including one motion partly seeking to preclude Joseph Tran from offering any testimony (D.I. 240 at Ex. 15, Motion in Limine #2 at 3), and a second motion seeking o exclude evidence and testimony regarding (i) Intel's total accused revenues or Intel's ov rall corporate revenues and profits; (ii) the four Intel settlement agreements on which Evans relied; and (iii) opinions or documents not discussed in Evans' report. (D.I. 240 at Ex. 15, Mo ion in Limine #3). The pretrial conference was held on January 25, 2013. During the pretrial conference, AVM argued that, whether the Court excluded Evans' testimony, AVM sho ld be permitted to present testimony from Tran concerning damages. On January 30,2013, AVM filed a bench memorandum (D.I. 255) and an offer (D.I. 257) regarding Tran's proposed testimony about damages. Intel responded the ne t day. (D.I. 258). On February 1, 2013, the Court held the Daubert hearing, at which Evans testifi d and was cross-examined. AVM disclosed at the hearing that, in light of the Court's January 4 opinion, its damages theory would rely solely on a single 2009 settlement agreement wi h the Wisconsin Alumni Research Foundation ("WARF") concerning U.S. Patent 5,781,752 "the '752 patent"). (D.I. 268 at 114). The parties also presented argument as to whether Tran sh uld be permitted to testify about damages. The parties filed additional submissions after the F bruary 1 hearing. On February 4, 2013, AVM filed a bench memorandum about Evans' damage testimony (D.I. 262) as well as a letter providing further argument as to Tran's propose 2 testimony. (D.I. 265). Intel filed a letter addressing the 2009 WARF agreement and th underlying facts of the litigation that led to that agreement. (D.I. 264). On February 5, 013, the parties filed dueling letters concerning the litigation that resulted in the 2009 W ARF a (D.I. 266, 267). For the reasons that follow, the Court grants Intel's Daubert motion. The Co concludes that Tran should not be permitted to testify concerning damages beyond facts and information within his personal knowledge. Thus, Tran would not be permitted to testi about anything speculative or hypothetical, including what he would have done in hypothetic negotiations. With specific reference to AVM' s amended offer of proof concerning Tr 's testimony (D.I. 257), Tran would be permitted to testify about the benefits of the '547 p tent, the legal assignments of the '547 patent, and his actual negotiations with Intel in 2006. (D .. 257 at 1 through second full paragraph on 3 and§ V). For the reasons discussed below, howeve, the Court concludes that most ofTran's testimony must be excluded because it is untimely isclosed and unreliable expert testimony. Accordingly, the Court also grants Intel's motion in li me. A. Evans' Testimony At the Daubert hearing, A VM disclosed that Evans' expert opinion would rely s lely on the 2009 WARF agreement and that it would not present a damages theory based on Int 1' s revenues or the three other license agreements (Micro Unity, Intergraph, and Transmeta) discussed in Evans' report, about which the Court had previously indicated its intent to xclude. (See D.I. 230). Thus, with respect to Evans' testimony, this opinion focuses on whether Evans' reliance on the 2009 WARF agreement is sufficient to support A VM' s damages theory be presented to the jury. 3 d can Evans' expert report states that "Intel's patent licensing history is principally th result of patent infringement litigation settlements." (D.I. 163 at Ex. 14 ~ 41). The report provi es seven examples of such license agreements. As one example, Evans describes Intel's Octobe 16,2009 agreement with WARF, which settled a patent infringement action brought by W ARF respect to the '752 patent. (!d. at~ 41(e)). The report states that the '752 patent "disci sed and claimed technology that improved the speed and efficiency oflntel microprocessors." (d.). Intel paid $110,000,000 to settle the litigation and obtain the license to the '752 patent. (ld.) Evans' report also describes an April 28, 2003 license agreement between Intel and W ARF for patents, for which Intel paid a lump sum of$6.2 million. (!d. at~ ee 41(f)). The report fu states that Evans did not know anything about any of the seven license agreements disc ssed other than their express terms and information from press releases with respect to the s dements and resulting licenses. (!d. at~ 42). Evans concludes that "Intel has paid lump sum roy lties of $110 to $675 million for licenses to practice the claims of microprocessor-related patens comparable to the '547 Patent." (!d. at~ 42). Evans does not explain why the $6.2 mil ion WARF agreement is not included in determining this range. 2 With respect to the 2009 WARF agreement, Evans states that "the technology d ·sclosed and claimed in [the '752 Patent] was not as important to Intel's commercial interests as he '547 Patent and that the royalty base for it was far less than the royalty base for the '547 Pate t." (!d. at~ 59). Evans concludes, therefore, that "the lump sum to be paid by Intel for a paid-u license under the '547 Patent should exceed that for WARF's '752 Patent." (!d.). 2 Evans also described a June 10, 2008 license agreement with Intergraph, value at $7 million. The report likewise does not explain why this agreement is not included in the ange of royalties. 4 Although Evans' report discloses his opinion concerning the 2009 WARF agree ent on which he now solely relies, 3 that opinion is not supported by any methodology that expl ins why the 2009 WARF agreement by itself could be the basis for an accurate conclusion abou the hypothetical negotiation over the '547 patent. To say that one litigation settlement agre ment relating to a different patent and executed five years 4 after the hypothetical negotiation have taken place- even assuming the '752 patent is comparable to the '547 patent- is e basis for an opinion is completely speculative without, at a minimum, some analysis ofthe lifgation that led to the settlement. Without analysis of the litigation, the conclusion cannot be b sed on "sound economic and factual predicates." See Riles v. Shell Exploration & Production o., 298 F.3d 1302, 1311 (Fed. Cir. 2002). Evans' report simply contains no analysis of factors that might affect the value settlement. For example, what was the amount of damages ultimately sought in the liti ation? 5 3 Intel objected to reliance solely upon the 2009 W ARF agreement as being a ne theory and unfair (D.I. 268 at 131-32), but the theory was a disclosed component of the damag s analysis in Evans' report. (D.I. 163 at Ex. 14 ~~ 41(e), 59). Intel's argument that it wo ld have prepared differently if it had known it was the only component of the damages analysis s not very persuasive. AVM originally had two theories, and the 2009 W ARF agreement wa one of the four legs of one of the two theories. Intel had substantial motive to discredit Evans' reliance on the 2009 WARF agreement even when it was not the only basis for AVM's damages theory. Evans' report places the hypothetical negotiation in January 2006. (D.I. 163 at Ex. 14, ~ 28). The parties at the Daubert hearing agreed that the date should be in 2004. (D.I. 26 at 77; see also D.I. 257, p.7 (identifying the date as December 2004)). Intel not only makes n objection to Evans' proposed testimony on the basis of the date of the hypothetical neg iation, but appears to have agreed to a different date, and thus the discrepancy in dates is not g rmane to the present dispute. 4 5 The 2009 W ARF settlement agreement (Pl. Ex. 7 to Daubert hearing) reveals t at the underlying litigation occurred in WARF v. Intel, No. 08 CV 78 BBC (W.D. Wisconsin) Through CM/ECF, the Court can see that there were in excess of 450 docket entries in t e WARF litigation, many of them under seal. At one point, counsel for Intel referred to t e 5 Would the issue of willfulness have been tried, with the possibility of treble damages? 6 Or, as in LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51 (Fed. Cir. 2012), had sanct ons been imposed? 7 Id. at 58 (discussing the BenQ settlement agreement, which was entered int after two years oflitigation within two weeks of the anticipated trial and after BenQ had bee sanctioned repeatedly by the court for discovery misconduct and misrepresentation). E ans also conceded at the February 1 hearing that he did not focus on the provision in the WARF agreement in which W ARF agreed to dispute resolution before filing litigation on any o its 2000 other patents (D .I. 268 at 80-81) against Intel or its customers and did not compare that rov1s10n to other license agreements. (Id. at 81-83). Whereas multiple settlement agreements might show a pattern, a single settleme t agreement on a different patent without any analysis of the settlement context is not a r method for calculating damages. See LaserDynamics, 694 F .3d at 77-79 (noting that " propriety of using prior settlement agreements to prove the amount of a reasonable roya ty is questionable" and further stating that "[t]he notion that license fees are tainted by the co rcive environment of patent litigation are unsuitable to prove a reasonable royalty is a logical xtension of Georgia-Pacific, the premise of which assumes a voluntary agreement will be reache "multibillion dollar damage claim that we designed around," (No. 08 CV 78 BBC (W. . Wise.), D.I. 446, p.61), but what the claimed damages were on the eve of trial is not readily dis emible. 6 It appears that willfulness had been eliminated from the case (No. 08 CV 78 B C (W.D. Wise.), at D.I. 405, pp. 3, 54), although subsequent to that ruling, WARF was still seeki g a willfulness jury instruction. (Id., D.I. 450, pp. 63-64). 7 The docket entries do not suggest that this was the case. 6 between a willing licensee, with validity and infringement of the patent not being dispu d"). 8 Moreover, neither Evans nor Joseph McAlexander, AVM's technical expert, ad ress why the 2003 license agreement for three WARF patents mentioned in paragraph 41(f) ofE ans' expert report is irrelevant. 9 An analysis that relies on a single license agreement but do s not take into account why other licenses are not comparable cannot be a reliable analysis. 10 Evans has not explained why his analysis did not consider the 2003 W ARF agreement. 11 In fa t, Evans testified at the February 1 hearing that he never reviewed the three patents that were the subject of the 2003 W ARF agreement and conceded that it was not one of the agreements on w relied in his original expert report. (D.I. 268 at 78-79). AVM asserts that Federal Circuit precedent permits damages claims to be base single license agreement, or a single settlement agreement for the patent-in-suit, or a sin le license agreement for a comparable technology. (D.I. 262 at 1) (citing Dow Chemical o. v. Mee 8 The license agreement at issue in LaserDynamics covered the same patent at is ue in that case. Here, the W ARF agreement relates to a different patent and, therefore, is furt removed and less reliable. 9 McAlexander served an expert report on May 15, 2012. AVM also filed a dec by McAlexander in support of its opposition to Intel's Daubert motion on December 6, (D.I. 207-1 at Ex. C). Intel has moved to strike the December 6 declaration. (D.I. 217). Even assuming the Court does not strike McAlexander's December 6 declaration, it nowhere ddresses the comparability, or lack thereof, of the patents that are the subject of the 2003 W ARF agreement. 10 This is particularly true where, as here, the analysis does not consider an agre was executed with the same party closer in time to the date of the hypothetical negotiati 11 ent that Although Evans describes the 2003 WARF agreement as a litigation settleme t (D.I. 163 at Ex. 14, ~ 41(f)) (describing it as an example of"such licensing" referring to "pat nt infringement litigation settlements"), Intel describes it as a "non-litigation agreement." D.I. 264 at 10). Intel does not cite anything for its statement, and thus for present purposes the finds that it is a litigation settlement agreement. 7 Industries, Inc., 341 F.3d 1370 (Fed. Cir. 2003); Lucent Techs., Inc. v. Gateway, Inc., 5 1301 (Fed. Cir. 2009); ResQNet, Inc. v. Lansa, Inc., 594 F.3d 860 (Fed. Cir. 2010) (per uriam)). AVM further asserts that "[t]here is no logical reason why a settlement agreement for a comparable technology should be treated differently." (D.I. 262 at 1). AVM's attempt o extend the logic ofthe Federal Circuit precedent it cites is a "bridge too far." AVM does not c"te to a single case where any court permitted a damages claim to be based on a single settleme t agreement for a comparable technology. The only case to which AVM cites in support proposition is a discovery decision. See Tyco Healthcare Group LP v. E-Z-EM, Inc., 2 774878, at *1 (E.D. Tex. Mar. 2, 2010). The court in Tyco addressed whether settleme t communications that resulted in a license agreement were discoverable. Id. The court that "ResQNet suggests that the underlying negotiations are relevant to the calculation reasonable royalty using the hypothetical negotiation damages model." Id. at *2 (emph sis added). The court did not address specifically whether damages claims could be based olely on a single settlement agreement involving comparable technology. And, in any event, wh t is missing here is any analysis of the underlying negotiations between WARF and Intel or he context in which the settlement agreement was reached. Even assuming that a single se tlement agreement on a comparable technology could be the basis for a reliable conclusion, whi h the Court doubts, Evans' analysis falls far short of what would be necessary for such a cone us ion. The parties' dueling February 4 and February 5 letters are further evidence ofth type of analysis required before the 2009 WARF agreement could conceivably have been the b sis for a reliable conclusion. (See D.I. 264, 266, 267). For example, in its February 4 letter, Int 1 states that theW ARF court "rejected Intel's invalidity defense just before trial." (D.I. 264 at 3 . AVM 8 disputes this characterization and argues that the court "merely denied Intel's motion 'o one of its theories of invalidity."' (D .I. 266). Intel responds in its February 5 letter that the co "rejected Intel's anticipation defense as inconsistent with the court's claim construction" (D.I. 267). At an absolute minimum, some analysis of the defenses available to Intel at trial r the strength of those defenses would need to have been done before relying solely on the 20 9 W ARF agreement. Thus, for the reasons discussed, the Court concludes that Evans' testimony must be excluded entirely. B. Tran's Testimony AVM proffered five areas in which it proposed to have Tran testify. (D.I. 257). They are: (1) about the benefits of the patent in suit (to which Intel does not object); (2) the le al assignments of the patent in suit (to which Intel does not object); (3) Tran's negotiation with Intel in 2006; (4) Tran' s conduct in a hypothetical negotiation; and (5) Tran' s knowledg of 1999 negotiations with Intel over other patents (to which Intel does not appear to object, but of little apparent relevance). Intel objects to most of the third area and all of the fourth ea. 12 AVM asserts that Tran's testimony is not expert and that, as the co-inventor oft e '547 patent and former CEO of AVM's predecessor, he is "uniquely qualified" to offer testi concerning the Georgia-Pacific factors. (D.I. 255 at 3). Intel objects to Tran testifying o damages on three grounds: (1) Tran's proposed testimony would be improper expert op· ion testimony; (2) even if Tran' s testimony is not improper expert opinion, it was disclosed oo late; 12 Intel's objections to the proposed testimony are at D.I. 258. The Court's inte retation of exactly what Intel does and does not object to is as set forth in the text. 9 and (3) even ifTran is permitted to testify, his testimony is not sufficient to establish A M's damages. (D.I. 258 at 1-3). The dispute over Tran's testimony arises against a backdrop in which damages e presumed if infringement is proven. See 35 U.S.C. § 284. Reasonable royalty damages must be awarded if infringement is proven. See Dow Chemical Co. v. Mee Industries, Inc., 341 .3d 1370, 1381-82 (Fed. Cir. 2003) (holding that district court erred in concluding that "no could be awarded, in light of the presumption of damages when infringement is proven' ); Lindemann Maschinenfabrik GmbH v. Am. Hoist & Derrick Co., 895 F.2d 1403, 1406- 8 (Fed. Cir. 1990); cf Devex Corp. v. General Motors Corp., 667 F.2d 347, 363 (3d Cir. 1981) "The statute requires the award of a reasonable royalty, but to argue that this requirement exi ts even in the absence of any evidence from which a court may derive a reasonable royalty goes b yond the possible meaning of the statute."). If there were a trial, and Intel's products were found to be infringing, there is admissible evidence from which a reasonable royalty could be awar ed, although it would likely be a very small fraction of what AVM is seeking through the te timony that is the subject of these motions. See infra at footnote 13 (describing admissible evi might bear upon a calculation of reasonable royalty damages). That reasonable royalty must be awarded if infringement is found, however, does not mean that the rules of evi not apply to proposed testimony. Much ofTran's proffered testimony would be improper expert opinion, includin , for example, an analysis of the estimated costs that "Intel necessarily would have incurred o avoid the '547 patent" (D.I. 257 at 8); the calculation of a "per design technology use" fee tha Intel would pay for each different product design using the '547 patent (id. at 3-4); a multipli ation 10 factor to apply to the per design technology use fee (id. at 4); and a final damages numb r based on the application of the adjusted and discounted per design technology use fee to the n mber of product designs (id. at 12). These calculations are the province of expert analysis. See, e.g., Veritas Operating Corp. v. Microsoft Corp., 2008 WL 657936, at *33 (W.D. Wash. Jan 17, 2007) (lay witness may not offer an opinion on ultimate patent damages, "including det rmining a reasonable royalty"). Tran's proposed testimony regarding events that "would have" occurred is also inadmissible. Although a lay witness may testify to facts within his personal knowledg , a lay witness may not offer testimony as to events that "would have occurred." See Donlin v. Philips Lighting N Am. Corp., 581 F.3d 73, 82-84 (3d Cir. 2009) (vacating district courtjudgm nt where damages testimony from lay witness "went beyond those easily verifiable facts w th their personal knowledge and instead required forward-looking speculation for which she lac ed necessary training"). Tran's testimony as to what would have happened in a hypothetic I negotiation would not be based on his personal knowledge and, therefore, is not admissi le. See Wilburn v. Maritrans GP, Inc., 139 F.3d 350, 356 (3d Cir. 1998) (expert, not lay, witne s may address hypothetical questions). Although much ofTran's proffered testimony is improper expert opinion or imp oper speculative or hypothetical testimony, his proffered testimony as to facts within his pers nal knowledge is admissible. Tran would be permitted to testify to the benefits of the '54 7 atent (D.I. 257 at§ I), the legal assignments of the '547 patent (id. at§ II), his actual negotiati ns with Intel in 2006 (id. at§ III through second full paragraph on page 3), and his 1999 negotia ions. (Id. at§ V). This testimony is based on fact and within Tran's personal knowledge. 11 The proposed expert and hypothetical testimony is also disclosed far too late, on the eve of trial. AVM never identified Tran as having knowledge of damages. During Tran's d position, Intel questioned Tran about damages, including asking him the amount that he would h ve accepted for a license to the '54 7 patent. He testified that he had "no idea[]" what he w uld have accepted for a license. (D.I. 259 at Ex. 1 at 174, 175, 186). Tran further testified that h did not have any number in mind as to what AVM should seek in damages from Intel. (Id. at E . 1 at 68-69). Intel would be prejudiced by AVM's late disclosure ofTran's damages analysi . Intel was denied any opportunity to seek discovery into Tran's damages theory or develop its own response and, therefore, would be prejudiced by Tran's proposed expert and hypothetic 1 testimony. See e.g., ePlus, Inc. v. Lawson Software, Inc., 700 F.3d 509, 523 (Fed. Cir. 012) (holding that the district court's concerns that the defendant would be prejudiced by a c of the damage calculation on the eve of trial provided the district court "with sufficient preclude ePlus from presenting any evidence of damages at trial"); MicroStrategy, Inc. Business Objects, SA., 429 F.3d 1344, 1357 (Fed. Cir. 2005) (exclusion of non-expert amages opinion is proper where "new theories surprised [Defendant] on the eve of trial and prej diced any response"). Finally, Tran's expert and hypothetical testimony, even if timely disclosed, is in ufficient to meet AVM' s burden of proving the damages Tran asserts. Before presenting a dama es number to the jury, the patentee must establish that its calculation is based on reliable methodology and concrete facts. See, e.g., Uniloc USA, Inc. v. Microsoft Corp., 632 F. 1315 (Fed. Cir. 2011) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 1993)). Tran's proffered analysis is to some extent a rehash of the proposed Evans' testimony, 12 Court has concluded today and in its earlier opinion must be excluded. To the extent it i not a rehash, Tran's qualification to offer licensing testimony of the sort that is proffered is d btful, and the methodology has not been shown to be reliable. As a matter oflaw, AVM cann t introduce a damages theory to the jury without establishing its reliability. See Lucent ~ v. Gateway, Inc., 580 F.3d 1301, 1324, 1335 (Fed. Cir. 2009) (vacating damages award here the "jury's damages award [was] not supported by substantial evidence, but is based mainly on speculation or guesswork"). AVM relies on CPG Products Corp. v. Pegasus Luggage, Inc., 776 F.2d 1007 ( 1985), for the proposition that Tran' s testimony is legally sufficient to support AVM' s amages claim. This case is essentially irrelevant to the issue at hand. Although the Federal Cir it did uphold the trial court's award of damages, the Court was focused on the issue ofwheth the defendant could have offered testimony challenging the reasonable royalty rate. !d. at 1 The defendant did not present such testimony and the Federal Circuit held that the defe dant could not be heard to complain after the fact. !d. The trial court merely found that a fa witness could testify concerning the fact that there was a 20% difference in the price of the plai product and the competing product sold by the defendant to support a claim for a 20% r yalty. See CPG Products Corp. v. Pegasus Luggage, Inc., 1983 WL 248, at *12, 20 (S.D. Fla. 1983) (district court opinion). CPG is consistent with the later-decided Lindemann Maschine abrik and Dow Chemical cases. CPG did not conclude that a fact witness may perform a d calculation or testify as to what would have occurred in a hypothetical negotiation. Thus, for the reasons discussed, the Court concludes that, although Tran would e permitted to testify to facts within his personal knowledge, the Tran expert and hypothe ical 13 testimony proffered in D.l. 257 at 3-13 should be excluded because it is untimely disclo ed expert and otherwise inadmissible testimony. Because Evans' testimony and much ofTran's proffered testimony concerning mages have been excluded, and because the Court understood that AVM did not want to proce d to trial without at least one of the evidentiary bases for a theory of damages in excess of $100,0 0,000, the Court vacated the trial date (February 11, 2013). In view ofFederal Circuit precede t, however, the Court cannot at this time grant Intel's motion for summary judgment of no damages. 13 The Court does grant the motion to exclude Evans' testimony and the moti m limine with regard to Tran's proferred expert and hypothetical testimony. An appropriate order will follow. 13 Lurking in the background are two pieces of evidence relating to damages, nei her of which has been featured in recent argument. There is evidence (denied by Tran, see D.I 257 at 3) from which it seems reasonable to believe that Tran himself made a licensing offer t Intel for the patent in suit in 2006 of$200,000 per year for seventeen years. (D.I. 163 at Ex. 14, ~ 4445). If found to be a fact, the relationship of that valuation to a 2004 hypothetical negot ation would require further elucidation. For example, the patent-in-suit is said to expire in 2016, (see D.I. 257 at 7), which is roughly consistent with the idea of taking a license going backs x years to 2000 -or a period of seventeen years from 2000-2016. There is also evidence that T an placed a value on the patent in 2006 anywhere from $12,000 to $450,000. (D.I. 257 at -2). Again, the relationship of those valuations to a hypothetical negotiation are less than cl r. AVM' s recent arguments suggest that it does not believe that these pieces of evidence ould support any damages theory that it would want to rely upon at a trial. 14

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