United States District Court, D. Delaware
RICHARD G. ANDREWS, District Judge.
The Court now takes up the Defendant's Motion for Expedited Clarification of the Court's Memorandum Opinion and Memorandum Order (D.I. 509), the Defendant's Motion to Exclude the Testimony of Plaintiffs Damage Expert Thomas Britven (D.I. 435), the Defendant's Motion to Strike the Supplemental Expert Report by Thomas Britven (D.I. 518), and the Plaintiffs Motion to Preclude the Proposed Expert Testimony of the Defendant's Damages Expert Daniel McGavock (D.I. 415). The motions are fully briefed. (D.I. 416, 419, 439, 465, 436, 469, 480, 509, 516, 517, 519, 531, 541). The Motions are DENIED in part, GRANTED in part, and DISMISSED AS MOOT in part for the reasons stated below.
DEFENDANT'S MOTION FOR CLARIFICATION (D.I. 509)
The Defendant moves the Court to clarify its Memorandum Opinion concerning "advance selector" (D.I. 503) and its Memorandum Order concerning damages (D.I. 505).
Advance Selector (D.I. 503)
The Court found that it did not have subject matter jurisdiction regarding the term "advance selector" in connection to Claims 9 and 13 of the '465 Patent and Claims 6 and 9 of the '861 Patent. (D.I. 503 at 12). The Defendant seeks clarification of "whether the Court's holding is simply that the four unasserted claims are not in the case, or whether ThyssenKrupp cannot assert a best mode violation relating to the advance selector' for the claims that have been asserted." (D.I. 509 at 2). The Court's holding was simply that the Court did not have subject matter jurisdiction over unasserted claims. However, as the Defendant indicates that there is a disagreement between the parties regarding whether best mode can be raised regarding the presence of an "advance selector, " for the asserted claims, the Court will address this issue.
The term "advance selector" appears nowhere in the asserted claims. Additionally, the Court has not construed any term in the asserted claims to require an advance selector. Despite the Defendant's claim that a modernizing device contains an advance selector, the Court has construed this claim to mean "an electrical circuit that interfaces between a computer and an elevator control." (D.I. 297 at 4). "Subject matter outside the scope of the claims also falls outside the scope of the best mode requirement." AllVoice Computing PLC v. Nuance Commc'ns, Inc., 504 F.3d 1236, 1246 (Fed. Cir. 2007). The asserted claims do not require an advance selector. There can therefore be no best mode violation based on the presence or absence of an advance selector.
Damages (D.I. 505)
The Defendant seeks clarification regarding the Court's damages memorandum. (D.I. 509 at 3). The Defendant understood the Court's order "to mean that Plaintiff is limited in this case to damages in the range of $194, 985 to $263, 004, reflecting a reasonable royalty of $6, 093 to $8, 219 per elevator per overlay modernization project." Id. This is incorrect. The Court did not limit the Plaintiff to a specific amount of damages, but instead held that the royalty base may not include the services contract revenues.
DEFENDANT'S MOTIONS TO EXCLUDE PLAINTIFF'S DAMAGES EXPERT (D.I. 435 & D.I. 518)
The Defendant has brought two motions regarding the Plaintiffs Damages expert, Mr. Britven. The Court will address these in turn.
Rule 702 permits a qualified witness to testify as an expert provided that the expert's knowledge will be helpful to the trier of fact, the testimony is "based on sufficient facts or data, " and the testimony is the result of reliable principles and methods that were reliably applied by the expert. FED. R. EVID. 702.
Defendant's Motion to Exclude the Testimony of Plaintiff's Damages Expert (D.I. 435)
The Defendant raises many of the same issues in its Motion to Exclude the Testimony of Mr. Britven as it raised in its Motion to Strike Relating to Damages. (D.I. 431). Those issues that have already been addressed by the Court are now moot. The ...