Defense Side Amici Support for Tighter Reins on Damages Expert Testimony
Patent – Patently-O 2024-08-16
Summary:
by Dennis Crouch
Google’s pending en banc petition in EcoFactor v. Google has drawn significant support from some tech giants, focusing on the application of Daubert standards to patent damages expert testimony. Five amicus briefs supporting Google’s position have been filed with the Federal Circuit, each arguing for stricter scrutiny of damages calculations and expert reliability in patent cases. This post discusses the case and the issues presented by the amici army.
I wrote previously about Google’s pending en banc petition in EcoFactor v. Google, focusing on whether EcoFactor’s damages expert testimony satisfied the requirements of Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579 (1993). Under Daubert and its progeny, judges must act as “gatekeepers” to ensure expert testimony is relevant and based on reliable scientific methodology. Judges must consider factors such as testability, peer review, error rates, and general acceptance when evaluating the reliability of expert evidence. For damages experts, Daubert requires that their methodologies and conclusions be scientifically valid and reliably applied to the facts of the case, which can involve scrutiny of their data sources, economic models, and apportionment analyses.