The Remedies Remedy is Almost Complete: EcoFactor v. Google
Patent – Patently-O 2025-05-22
Summary:
by Dennis Crouch
The Federal Circuit’s en banc decision in EcoFactor v. Google marks a significant tightening of standards for admitting patent damages expert testimony. The court (in an 8–2 split) overturned a $20 million jury award by excluding the patentee’s expert evidence as insufficiently reliable under Federal Rule of Evidence 702 and Daubert. Writing for the majority, Chief Judge Moore treated what traditionally might have been viewed as a factual dispute over “comparable” license agreements as, instead, a matter of contract interpretation for the court. In doing so, the majority held that the trial judge failed in his gatekeeping duty by allowing the jury to hear an expert opinion founded on speculative leaps—namely, the assumption that prior licensees agreed to a particular royalty rate that was not reflected in the actual license terms. Two dissenting judges (Judges Reyna and Stark) each criticized the court for overstepping the proper scope of Rule 702 and for usurping the jury’s role in weighing evidence. As I discuss below, I believe that the dissents have the better view of this case. [Read the Decision]
I see this case as part of a crafted doctrinal transformation that I call the “Remedies Remedy,” that began with the Supreme Court’s undermining of injunctive relief in eBay Inc.