Board of Regents, The University of Texas System et al v. Boston Scientific Corporation

Filing 261

MEMORANDUM ORDER re 199 MOTION to Preclude Expert Testimony filed by Boston Scientific Corporation is DENIED; 191 MOTION to Exclude the Testimony of David A. Haas filed by Board of Regents, The University of Texas System, TissueGen, Inc. is DENIED. Signed by Judge Gregory B. Williams on 12/12/22. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

BOARD OF REGENTS, THE UNIVERSITY
OF TEXAS SYSTEM and TISSUEGEN, Inc.
Plaintiffs,
Civil Action No. 18-392-GBW

V.

BOSTON SCIENTIFIC Corp.
Defendant.

MEMORANDUM ORDER
Plaintiffs TissueGen, Inc. ("TissueGen") and the Board of Regents, The University of
Texas System ("UTBOR") (collectively, "UT") allege that Defendant Boston Scientific Corp.' s
("BSC") "Synergy" brand coronary stents (the "Accused Products") infringe U.S. Patent No.
6,596,296 ("the '296 patent"). D.I. 124 ,r,r 1-3, 79. Pending before the Court are UT's Daubert
Motion to Exclude Testimony of David A. Haas (D.I. 191) and BSC's Motion to Exclude Expert
Testimony (D.I. 199) (the "Motions"). Both parties argue that the opposing damages expert fails
to properly apportion damages between patented and unpatented features of the Accused
Products. See D.I. 192 at 1; D.I. 200 at 40. The Court denies the Motions because both experts
had good grounds for their apportionment analyses. 1

I.

LEGAL STANDARD

A.

Motions to Exclude Evidence
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), the

Supreme Court held that Federal Rule of Evidence 702 creates "a gatekeeping role for the [trial]

1

The Court has reviewed the parties' briefing, D.I. 192; D.I. 212; D.I. 219; D.I. 200; D.I. 214;
D.I. 220, writes for the benefit of the parties, and assumes familiarity with the case.

judge" in order to "ensur[e] that an expert' s testimony both rests on a reliable foundation and is
relevant to the task at hand." Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if: (a) the expert' s
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702. As the Third Circuit has explained,
Rule 702 embodies a trilogy of restrictions on expert testimony: qualification,
reliability and fit. Qualification refers to the requirement that the witness possess
specialized expertise. We have .. . [held] that a broad range of knowledge, skills,
and training qualify an expert. Secondly, the testimony must be reliable; it must be
based on the methods and procedures of science rather than on subjective belief or
unsupported speculation; the expert must have good grounds for his o[r] her belief.
In sum, Daubert holds that an inquiry into the reliability of scientific evidence
under Rule 702 requires a determination as to its scientific validity. Finally, Rule
702 requires that the expert testimony . .. must be relevant for the purposes of the
case and must assist the trier of fact.
Schneider ex rel. Estate ofSchneider v. Fried, 320 F.3d 396, 404-05 (3d Cir. 2003) (cleaned up);
Kuhar v. Petz! Co., 2022 WL 1101580, at *7 (3 d Cir. Apr. 13, 2022) (noting the same trilogy).

Rule 702 "'has a liberal policy of admissibility[,]'" Pineda v. Ford Motor Co., 520 F.3d
237, 243 (3d Cir. 2008) (citation omitted); see also United States v. Scripps, 599 F. App' x 443 ,
447 (3d Cir. 2015) (same), as "the question of whether the expert is credible or the opinion is
correct is generally a question for the fact finder, not the court[,]" Summit 6, LLC v. Samsung
Elecs. Co., Ltd. , 802 F.3d 1283, 1296 (Fed. Cir. 201 5). "Vigorous cross-examination,

presentation of contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509
U.S. at 596; see Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61 , 83 (3d Cir. 2017) (quoting
Daubert, 509 U.S. at 596).
2

B.

Apportionment of Patent Damages
"A patentee is only entitled to a reasonable royalty attributable to the infringing features

[of an accused product]. The patentee 'must in every case give evidence tending to separate or
apportion the defendant's profits and the patentee's damages between the patented feature and
the unpatented features.'" Power Integrations, Inc. v. Fairchild Semiconductor Int 'l, Inc., 904
F.3d 965,977 (Fed. Cir. 2018) (quoting Garretson v. Clark, 111 U.S. 120, 121 (1884)); see First

Quality Tissue, LLC v. Irving Consumer Prod. Ltd., 2022 WL 958089, at *12 (D. Del. Mar. 30,
2022) (quoting Power Integrations, 904 F.3d at 977). Thus, "to be admissible, all expert
damages opinions must separate the value of the allegedly infringing features from the value of
all other features." Commonwealth Sci. & Indus. Rsch. Organisation v. Cisco Sys., Inc., 809
F.3d 1295, 1301 (Fed. Cir. 2015) (citation omitted). "If it can be shown that the patented feature
drives the demand for an entire multi-component product, a patentee may be awarded damages
as a percentage of revenues or profits attributable to the entire product." LaserDynamics, Inc. v.

Quanta Computer, Inc. , 694 F.3d 51, 67 (Fed. Cir. 2012).
Apportionment must rely upon "'reliable and tangible' evidence." Ericsson, Inc. v. D-

Link Sys., Inc. , 773 F.3d 1201 , 1226 (Fed. Cir. 2014) (quoting Garretson, 111 U.S. at 121).
"' [T]he essential requirement' for reliability under Daubert 'is that the ultimate reasonable
royalty award must be based on the incremental value that the patented invention adds to the end
product."' Commonwealth Sci., 809 F.3d at 1301 (citation omitted). Data utilized in a damages
model must be "'sufficiently tied to the facts of the case."' Id. at 1302 (citation omitted).

II.

DISCUSSION
Both parties seek the exclusion of the other side's damages expert' s testimony for failure

to apportion. UT argues that BSC' s damages expert, Mr. David A. Haas ("Haas"), relied on an
"entirely arbitrary" apportionment factor of 50 percent that "is devoid of any reliable
3

methodology or economic analysis, and is not sufficiently tied to the facts of this case." D .I. 192
at 1. BSC argues that UT' s damages expert, Justin Lewis ("Lewis"), uses three "fatally flawed"
apportionment methodologies: one that "claims damages for the entire [Accused Product]" and
two that "use a 90% figure plucked out of thin air without any supporting basis." D.I. 200 at 40.
Both parties respond that their damages experts base their apportionment factors on
sound, defensible methodologies. BSC argues that "Haas ' s report ... includes a thorough,
multi-factor analysis to arrive at his ultimate conclusion" supported by consideration of features
that BSC contributed to the Accused Products and "comparable real-world market transactions
that apportioned incremental profits between similar patented and non-patented technology."
D.I. 212 at 1-2. UT argues that Lewis' s approaches to determine a reasonable royalty find
support in Federal Circuit caselaw. D.I. 214 at 25-27. The Court finds that UT' s and BSC' s
objections to each other's damages report go the weight of the evidence, not to its admissibility.
See generally Fried v. JP Morgan Chase & Co., 850 F .3d 590, 599 (3d Cir. 2017) ("The proverb

' what is good for the goose is good for the gander' applies . ... ").

A.

Haas Testimony
Haas explains in the May 2, 2022 Rebuttal Expert Report of David A. Haas (D.I. 193, Ex.

A, "Haas Rpt."), that "the presence of the readily available non-infringing PRO MUS stent
alternative would have significantly limited [BSC] ' s willingness to pay a royalty on units that
could otherwise avoid practicing the '296 patent." Haas Rpt. 1155. Further, Haas explains that
[t]he parties would have considered the average incremental profit of [the Accused
Product] over PROMUS, which was between $35 and $111. However, . . . they
would have known it was necessary to apportion away elements of this value that
did not relate to the ' 296 patent. While Mr. Lewis acknowledges this, he still
allocates 90% to 100% of the incremental profit to the '296 patent. My discussions
with [BSC] personnel and my consideration of the elements described throughout
this report, including, but not limited to, under Factor #13[,] suggest that the
majority of incremental benefit was due to [BSC]'s contributions and not the '296
patent. No more than half of the incremental profit is attributable to the ' 296 patent.
4

As such, no more than 50% of $47.15, or $23.57, represents the maX1Inum
incremental profit attributable to the '296 patent.
Haas Rpt.

,r 156 (footnotes omitted) (emphasis in original).

Haas built his conclusion on analysis that appeared earlier in his report. Haas explained
that, based on his review of BSC' s technical expert' s report, BSC' s prior drug-eluting stent, the
"PROMUS PREMIER," which the ' 296 patent does not cover, had many features that appealed
to clinician users. See Haas Rpt.

,r,r 37, 47 & n.62.

The Accused Products' advantages over the

PROMUS stents, Haas explained, were "thinner struts" with greater strength and flexibility,
better "steerability of the stent into position during the insertion procedure," and a drug-eluting
coating only on the surface (rather than in the interior) of the stent. Haas Rpt.

,r,r 54-56.

Haas

spoke with BSC' s Vice President, Clinical and BSC 's Senior Research Fellow and learned that
BSC had to "consider, test, and formulate solutions to" various "issues"-such as stent design,
delivery apparatus, coating process, outer and inner surface treatment processes, and inspection
systems-to create the Accused Products. Haas Rpt.

,r 135.

BSC developed stent coating

hardware and software, paid for testing, obtained FDA approval, and engaged in marketing and
sales of the Accused Products. Haas Rpt.

,r,r 137-40.

Haas, thus, concluded that "the lion' s

share of incremental profits that [BSC] has derived from sales of [Accused] [P]roducts over
PROMUS products should be credited to [BSC]' s own development efforts, testing efforts,
regulatory approval efforts, and marketing sales efforts as opposed to the much more limited
contributions of the patent-in-suit." Haas Rpt.

,r 141.

UT argues that "Haas conceived the 50% apportionment factor on his own. Nowhere in
his report does Mr. Haas include any quantitative analysis explaining how he reached the 50%
apportionment factor. " D.I. 192 at 4. UT, thus, argues that Haas ' s apportionment factor is
"arbitrary." D.I. 192 at 3; see D.I. 219 at 1 ("Nowhere else [other than paragraph 156] ... does
5

Mr. Haas describe any methodology to support his calculation of a 50% apportionment factor
.... "). UT also argues that Haas offers "opinions that require expertise in the field of
interventional cardiology." D.I. 219 at 2. BSC responds that "Haas's opinion is a
straightforward application of the accepted methodology for apportioning the incremental value
of patented technology in a multi-component product. For example, he literally analyzed each of
the elements from Georgia-Pacific factor #13 to determine what portion of the profit 'should be
credited to the invention ... ' .... " D.I. 212 at 8 (citation omitted).
An expert may apportion revenue attributable to patented and unpatented features of an
accused product "through a proper analysis of the Georgia-Pacific factors. . .. '[T]h[ at] ...
analysis takes account of the importance of the inventive contribution in determining the royalty
rate that would have emerged from the hypothetical negotiation."' Exmark Mfg. Co. Inc. v.

Briggs & Stratton Power Prod. Grp., LLC, 879 F.3d 1332, 1349 (Fed. Cir. 2018) (citing
Georgia-Pacific Corp. v. US. Plywood Corp., 318 F.Supp. 1116 (S .D.N.Y. 1970)) (most
citations omitted). The expert must tie the Georgia-Pacific factors to the reasonable royalty rate
selected through consideration of '"the facts of the case . ... "' Id. (citation omitted). "While
mathematical precision is not required, some explanation of both why and generally to what
extent the particular factors impact the royalty calculation is needed." Id. at 1350 (cleaned up).
Here, Haas's substantial qualitative analysis supported his testimony as to the
apportionment factor, a part of the reasonable royalty rate calculation. See Bio-Rad Lab ys, Inc.

v. JOXGenomics, Inc. , 2018 WL 5729732, at *2 (D. Del. Nov. 2, 2018) (explaining that, since
'" any reasonable royalty analysis necessarily involves an element of approximation and
uncertainty[,]"' an expert could rely on "qualitative, instead of quantitative, analyses" (quoting

Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301 , 1325 (Fed. Cir. 2009)); see also Haas Rpt. ,r

6

57 (reviewing the Accused Products' research and development costs over 10 years). Haas
spoke with BSC employees and reviewed the report of BSC's technical expert. Haas used that
information to determine what contributions BSC made to the Accused Products over and above
those of the '296 patent. Thus, the Court declines to exclude Haas's opinion that "[n]o more
than half of the incremental profit [from the Accused Products over the PROMUS stent] is
attributable to the ' 296 patent" or the 50% apportionment factor that Haas drew therefrom. Haas
Rpt. 1156. Haas's lack of quantitative analysis does not preclude admissibility. Indeed, "it may
be impossible to quantitatively determine the exact percentage of a royalty rate that corresponds
to each component of a licensed product." Bio-Rad Lab ys, 2018 WL 5729732, at *2.
UT also contends that Haas was "not qualified to evaluate all of the highly technical
testimony he cites .... " D.I. 219 at 5. While Haas uses technical language in his comparison of
the Accused Products and the PROMUS stents, see Haas Rpt.

1147, 54, Haas relies on BSC's

expert and discussions with BSC personnel to reach his opinions, see Haas Rpt. 1154-56 nn.71 79, and BSC's expert offers simple explanations of the advantages that some of those technical
improvements give to users, see D.I. 203-51 , Ex. 11121-29. More importantly, Haas carefully
evaluated the investments BSC made in the successful development and sale of the Accused
Products (e.g., submission for FDA approval) in non-technical terms and based on conversations
with named BSC personnel. See Haas Rpt. 11135-40. Haas cites these non-technical
descriptions ofBSC's investments in the Accused Products' development to support his 50%
apportionment factor. See Haas Rpt. 1156 (citing Haas ' s analysis under Georgia-Pacific Factor
#13, which included Haas Rpt. 11135-40). Thus, the Court finds that Haas was qualified to
offer the opinions that supported his 50% apportionment factor analysis.
For the reasons above, the Court denies UT's Motion to exclude Haas' s testimony.

7

B.

Lewis Testimony
Lewis uses three methodologies to develop his proposed reasonable royalty: the

"Analytical Approach," the "Hypothetical Negotiation" Approach, and the Income Approach.
D.I. 203-48 §§ 4.2, 6. In the Analytical Approach, Lewis first subtracted the sales price of the
PRO MUS stents from that of the Accused Products to get the Accused Products' profit premium.

Id § 5.1. Lewis then reviewed BSC documents to find that the "bioabsorbable polymer coating
was the key differentiator over PROMUS," but noted that certain other "qualitative evidence"
pointed to additional features that differentiated the Accused Products from the PROMUS stents.

Id § 5.2. Lewis then relied on analysis from BSC technical expert Dr. Kirk Garratt ("Garratt")
to conclude that the bioabsorbable polymer coating- i.e., the innovation of the '296 patentaccounted for 90% of the premium the Accused Products earned over the PROMUS stents. Id ;

id at fig. 13 . In the Income Approach, Lewis evaluated the difference in price and market share
between the Accused Products and the PROMUS stents and, again, concluded that the
unpatented features of the Accused Products drove no more than 10% of the resulting higher
profit. Id § 6.1.2. In the Hypothetical Negotiation Approach, Lewis described license
agreements between TissueGen and UTBOR for the ' 296 patent and between BSC and a third
party for technology related to the Accused Products. Id § 6.1.1. He then evaluated whether the
licenses were economically and technically similar to a hypothetical license that UT would
negotiate with BSC for use of the '296 patent in the Accused Products. Id After adjusting the
licenses for technical and economic differences, Lewis calculated a reasonable royalty rate. Id
In his Corrected Expert Report (D.I. 203-49, "G. Rpt."), Garratt compares the features of
the Accused Products to those of the PROMUS stents and opines that "the only material
difference" between them "is the stent coating component of the stent systems" (i.e., the
innovation of the '296 patent). G. Rpt.

,r 12.

Garratt also opines, based on (1) his experience
8

using both types of stents and (2) how BSC marketed those stents to him and to his colleagues,
that "feature differences other than those relating to stent coating components were not material
to differentiating" the two stents. Id.

,r,r 8, 13.

Thus, Garratt opined, other improvements of the

Accused Products over the PRO MUS stents "would account for no more than 10% of a decision
on which [of the two] stent[s] to purchase." Id.

,r 13 .

BSC argues that "Lewis's Analytical and Income Approaches depend entirely on
[Garratt' s] 90% apportionment rate" for their apportionment factor. D.I. 200 at 47. Garratt' s
opinion, BSC argues, is "unsupported and unreliable" because he lacked a clear methodology,
any analysis, or sufficient evidence. Id. at 47-49. UT responds that Lewis conducts his own
analysis and that Garratt's opinion derives from his "extensive experience as an interventional
cardiologist," use of both stent types, and interactions with BSC salespeople. D.I. 214 at 32-33 .
"[E]stimating a reasonable royalty is not an exact science." Summit 6, 802 F.3d at 1296.
However, Rule 702 requires that expert testimony be "supported by good grounds." UGI

Sunbury LLC v. A Permanent Easement for 1. 7575 Acres, 949 F.3d 825 , 834 (3d Cir. 2020)
(internal quotation marks and citation omitted). An expert may offer opinions based on personal
experience if the expert also "explain[s] how that experience leads to the conclusion reached,
why that experience is a sufficient basis for the opinion, and how that experience is reliably
applied to the facts. " Integra Lifesciences Corp. v. HyperBranch Med. Tech. , Inc., 2018 WL
1785033, at *6 (D. Del. Apr. 4, 2018); 360Heros, Inc. v. GoPro, Inc., 569 F. Supp. 3d 198, 204
(D. Del. 2021) (collecting cases) (" [P]ersonal, relevant experience can serve as a foundation for
reliability.")
Here, Garratt had "good grounds" for his opinion. Garratt explained why he thought the
"only material difference" between the PROMUS stents and the Accused Products was "the stent

9

coating component." G. Rpt.

~

12. Garratt also opined that BSC marketed the Accused Products

to him and other physicians he knew based on that coating and described his personal experience
placing different stent types. G. Rpt.

~~

8, 13, 16. Garratt's opinions supported his conclusion

that only the coating-and not other factors-drove stent purchasing decisions. Garratt' s 10%
estimate is certainly imprecise, but Garratt' s expertise permitted him to attribute that much
weight to differences between the stents that he found non-material. See G. Rpt.

~

13. Tellingly,

BSC turns to its own technical expert' s evaluation of other factors that may have driven sales of
the Accused Products to discredit Garratt. See D.I. 200 at 50. The Court will leave it to the jury
to weigh the opinions of the parties' experts and determine the weight to give their respective
testimony. See ZF Meritor, LLC v. Eaton Corp. , 696 F.3d 254, 290 (3d Cir. 2012) ("The
respective credibility of [the parties' ] experts was a question for the jury to decide."). The Court
need not decide if Lewis's alleged separate apportionment analysis was adequate. See D.l. 214
at 31.
BSC also argues that Lewis ' s Hypothetical Negotiation Approach violated the "entire
market value" rule because Lewis "uses as his royalty base the entire market value" of the
Accused Products-including, e.g. , unaccused metal stents, catheters, and balloons-and relied
on license agreements for patents and products not at issue here. D.I. 200 at 44-45; D.I. 220 at
23-25. UT responds that Lewis "accounts for the value added by the patented feature in the
royalty rate." D.I. 214 at 29-30. The hypothetical negotiation "attempts to calculate the royalty
rate the parties would have agreed upon had they negotiated an agreement prior to the start of the
infringement." Apple Inc. v. Wi-LAN Inc., 25 F.4th 960, 971 (Fed. Cir. 2022). '" [A] patentee
may assess damages based on the entire market value of the accused product only where the
patented feature creates the basis for customer demand or substantially creates the value of the

component parts. "' Virnetx, Inc. v. Cisco Sys., Inc., 767 F.3d 1308, 1326 (Fed. Cir. 2014)
(citation omitted). Otherwise, the patentee must apportion a product' s value between patented
and unpatented product features . See Ericsson, 773 F.3d at 1226. " [T]he ultimate combination
ofroyalty base and royalty rate must reflect the value attributable to the infringing features of the
product, and no more." Id. (citation omitted). Where unpatented features contribute to a
product's value, use of the entire market value of the product as a royalty base risks misleading
the jury. Id. at 1226-27; Virnetx, 767 F.3d at 1328-29. Courts must require "a more realistic
starting point" which is, "often, the smallest salable unit and, at times, even less." Ericsson, 773
F.3d at 1227. However, "further apportionment may not[] be required" in the "unusual" case
where another license agreement is "sufficiently comparable" and, thus, has "'built-in
apportionment. "' Vectura Ltd. v. Glaxosmithkline LLC, 981 F.3d 1030, 1040 (Fed. Cir. 2020)
(citation omitted); Elbit Sys. Land & C4I Ltd. v. Hughes Network Sys., LLC, 927 F.3d 1292, 1301
(Fed. Cir. 2019) (finding expert analysis "incorporate[d] the required apportionment" when the
licensed "component" was "comparable" to the patented component of the "larger product").
Experts must still evaluate "meaningful economic" and technical "differences" between the
comparator license and the license from the hypothetical negotiation. Vectura, 981 F.3d at 1041.
Here, Lewis' s analysis of two sets of licenses properly accounted for the value of
unpatented features using the royalty rate. Lewis evaluated an exclusive license that UTBOR
sold to TissueGen for use of the ' 296 patent and related patents and a non-exclusive license to
sell products that used certain coating technology, which a BSC-related entity purchased from a
third party. D.I. 203-48 §§ 6.1.1.1 , 6.1.1.2. Since both licenses used net sales of licensed
products as the royalty base, id.-the same royalty base at issue here, id. § 4.1-and since the
products covered by both licenses appear to contain more than the patented technology, id. §§

11

6.1.1.1 (charging "3% of net sales of products that practice" intellectual property both covered
by and "not covered by the agreement"), 6.1.1.2 (license covering "medical devices intended for
clinical use, the manufacture of which uses coating technology"), both licenses have built-in
apportionment But see Acceleration Bay LLC v. Activision Blizzard Inc., 2019 WL 4194060, at
*5 (D. Del. Sept. 4, 2019) (rejecting "cursorOy'' built-in apportionment argument where the
expert failed to discuss the concept in the expert report). Lewis also evaluated how various
factors-such as UTBOR' s interest in encouraging use of its inventions, the lower rate for nonpatented material in BSC's license, and the inclusion of know-how, along with rights to use
technology, in both license agreements-could affect whether the hypothetical negotiation would
result in a higher or lower royalty rate. See D.I. 203-48 §§ 6.1.1.1, 6.1.1.2. Lewis found that
comparable rates of 3% and 2.5 to 5% for the UTBOR and BSC licenses, respectively, accounted
for those differences.2 Id. The parties agree that the Accused Products are the "smallest saleable
unit," D.I. 220 at 23, and UT does not dispute that non-infringing components contribute to the
Accused Products' value, see D.I. 214 at 27-28. Thus, to avoid confusing the jury, UT may be
required to further apportion the royalty base. See Ericsson, 773 F.3d at 1227. However, these
comparable licenses build in apportionment by applying the royalty to a base of product sales,
and Lewis accounts for economic and technical differences between the comparator and

2

Lewis also evaluated an exclusive, third party license agreement that covered stents which use
the same drug as the Accused Product. D.I. 203-48 § 6.1.1.3. Lewis admitted that the license
was "geared towards the drug" rather than to the "stent coating[,]" id., and suggested that the
license was not comparable to this case, D.I. 222-8 at 244:21-245:4. However, BSC's failure to
mention the third-party license in its Reply Brief, outside of a footnote, D.I. 220 at 24-25 &
n.16, waived its arguments related thereto, see John Wyeth & Bro. Ltd. v. CIGNA Int 'l Corp.,
119 F.3d 1070, 1076 n.6 (3d Cir. 1997) ("[A]rguments raised in passing (such as, in a footnote),
but not squarely argued, are considered waived."); Affinity Empowering, Inc. v. Eurofins Sci.,
Inc., 2022 WL 6734604, at *3 (D. Del. Oct. 11 , 2022) (same). BSC's motion does not challenge
the third-party license's comparability or argue that repeated references to BSC' s total revenue
from the Accused Products could prejudice the jury. See Elbit Sys., 927 F .3d at 1301-02.
12

hypothetical negotiation licenses in the royalty rates. See Vectura, 981 F .3d at 1041. For
example, just as the patented technology was the "key component" of a prior license to more
than 400 patents that the Vectura Court found comparable, id, the comparator UTBOR license
covered only patents related to the '296 patent, D.I. 203-48 § 6.1.1.1 . Thus, the Court finds that
UT was not required to further apportion its royalty base in its hypothetical negotiation analysis.
Lewis properly apportioned the Income and Analytical Approaches and used comparable
licenses with built-in apportionment. Thus, the Court denies BSC' s Motion.

m.

Conclusion

For the reasons stated above, the Court finds that Haas ' s expert testimony is admissible
because he used qualitative analysis and appropriately relied on BSC personnel and BSC 's
expert to apportion the difference between the PROMUS stents and the Accused Products
between patented and unpatented features . The Court similarly finds that Lewis' s expert
testimony is admissible because Garratt' s personal experience as a practicing expert provided
good grounds for his 90% apportionment factor and because Lewis apportioned the value
attributable to the '296 patent using the royalty rate from comparable licenses. Thus, the Court
denies the Motions.
~
WHEREFORE, at Wilmington this \L---

ay of December, 2022, IT IS HEREBY

ORDERED that UT's Daubert Motion to Exclude Testimony of David A. Haas (D.I. 191) is
DENIED and that BSC's Motion to Exclude Expert Testimony (D.I. 199) is DENIED.

GREGORY B. WILLIAMS
UNITED STATES DISTRICT JUDGE

13