Federal Circuit Grants En Banc Rehearing in EcoFactor v. Google, Limiting Damages Expert Testimony
Patent – Patently-O 2024-09-25
Summary:
by Dennis Crouch
The U.S. Court of Appeals for the Federal Circuit has granted Google's en banc rehearing in EcoFactor, Inc. v. Google LLC, No. 2023-1101 (Fed. Cir. Sept. 25, 2024), focusing on the admissibility of expert testimony regarding patent damages. This will be the first en banc utility patent case since 2018.
The order vacates the panel's previous decision that had sided with the patentee and calls for new briefing on: whether the district court properly applied Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in allowing testimony from EcoFactor's damages expert. The court has set a tight briefing schedule, with Google's opening brief due in 45 days, EcoFactor's response due 45 days later, and Google's reply due 30 days after that. Notably, the court is also welcoming amicus briefs without requiring consent or leave. This is an important case to the patent community. Under eBay and its progeny, equitable remedies are already tightly limited, and this case is looking to similarly tie-down damages theories to prevent large damage awards and provide further mechanisms to allow a judge to decide the outcome rather than a jury.