# Wherevertv, Inc. v. Comcast Cable Communications, LLC

> District Court, M.D. Florida · June 9, 2022

URL: https://www.frixlaw.com/law-library/cases/10110257

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** June 9, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10110257

## How later opinions describe it (automated extraction)

- stating that “absolute precision” is not required in apportionment, as “it is well-understood that this process may involve some degree of approximation and uncertainty”
- explaining that royalty calculations often involve “approximation and uncertainty”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

WHEREVERTV, INC.,

Plaintiff,
v. Case No: 2:18-cv-529-JLB-NPM

COMCAST CABLE
COMMUNICATIONS, LLC,

Defendant.

ORDER
Pending before the Court are two motions filed by Defendant Comcast Cable
Communications, LLC (“Comcast”) challenging the admissibility of certain opinions
offered by Plaintiff WhereverTV, Inc.’s (“WTV”) technology and damages experts.
(Doc. 222; Doc. 223.) WTV has opposed both of Comcast’s motions, and Comcast has
replied. (Doc. 238; Doc. 239; Doc. 254; Doc. 255.) After careful review of the record
and the relevant case law, the Court finds that both of Comcast’s Motions in Limine
are DENIED.
BACKGROUND

WTV is a “television service provider that offers live-streaming video content”
using a “wide range of internet enabled devices.” (Doc. 30 at ¶ 11.) Comcast, which
is one of the largest cable television and internet providers in the United States,
sells an entertainment platform known as the Xfinity X1 Platform (“X1”). (Doc. 30
at ¶ 24.) The X1 is “Comcast’s premier cable service” and is alleged to “work[ ] the
same way” as the claimed invention. (Doc S-230-1 at ¶¶ 115, 309.) In 2018, WTV
filed suit in this Court, contending that Comcast has “directly infringed and

continues to directly infringe all the limitations set forth in the ‘431 Patent’s claims
by making, using, offering for sale, and selling the Xfinity X1 Platform.” (Doc. 30 at
¶¶ 47–48.)
WTV introduced expert reports from Dr. William C. Easttom II (“Dr.
Easttom”) and Kyle Elam (“Mr. Elam”). Included in Dr. Easttom’s report was a
“Top Level Component Counting” analysis which identified the top level service

components in the technical architecture of the X1 Platform and distinguished the
infringing from non-infringing functions. (Doc. at S-239-1 at ¶ 389). Dr. Easttom
identified seven top level service components without which the X1 would not
operate effectively. (Id. at ¶¶ 390–404.) Among these components, he opined that
five were infringing and two were non-infringing. (Id. at ¶ 405.) Dr. Easttom then
assigned a weight to each of the top level service components reflecting the
percentage of that component that corresponded to a claim in the ‘431 Patent. (Id.

at ¶ 405.) The weights therefore represent the percentage of the particular top level
component found to be infringing. (Id. at ¶¶ 389, 405.)
Relying on Dr. Easttom’s expert report, Mr. Elam calculated the reasonable
running royalty he believed that Comcast and WTV would have agreed to at the
time of a hypothetical royalties negotiation. (Doc. S-260-1 at ¶¶ 135–38.)
Averaging the weights assigned by Dr. Easttom to each of the seven top level
service components, Mr. Elam found that 30 percent of the X1’s top level
components were infringing. (Id. at 160–61.) Mr. Elam then applied the percentage
of top level infringing components to the implied value of the X1 and found that,

using this method of apportionment, Comcast and WTV would have agreed to a
running royalty license agreement of $0.076 per X1 sold in the United States
between September 2016 and July 2026. (Id. at ¶¶ 137–38.)
Mr. Elam also conducted a second method of apportionment, separate from
Dr. Easttom’s component counting analysis, in which he started with the monthly
fee charged by Comcast per X1 set top box, divided this fee by the average number

of X1 set top boxes per subscriber, and then reduced the average fee per X1 set top
box by the fee associated with the non-infringing features of the set top box1 in
order to isolate the implied value of the X1 set top box. (Id. at ¶ 132.) Mr. Elam
determined that “approximately 20% . . . of Comcast’s subscribers” would likely
have used the infringing functionality at the time of the hypothetical royalties
negotiation. (Id. at ¶ 133.) Multiplying this percentage by the implied value of the
X1 set top box, less the amount that Comcast would have negotiated to maintain its

1 Mr. Elam explains:

“Comcast charges its customers $3.99 per month for a digital transport
adapter (“DTA”). It is my understanding that a DTA is a small device
that allows the digital cable network to display content on an analog TV
but it is my understanding that the DTAs do not display the searchable
interactive guide, premium channels, Video on Demand, or third party
apps. The monthly price differential of $5.96 between a STB and a DTA
is probative of the value of the features only available on a STB.”

(Doc. S-260-1 at ¶ 104.)
current device net cash flow margin, Mr. Elam calculated a running royalty of $0.05
per X1 set top box. (Id.)
Comcast now moves to exclude the opinions of both Dr. Easttom and Mr.

Elam under Federal Rule of Evidence 702, arguing that both experts’ analyses
present fundamental problems rendering them inadmissible. (See Doc. 222; Doc.
223). Because Mr. Elam’s damages calculations are premised on the findings in Dr.
Easttom’s expert report, the two will be assessed in tandem, beginning with Dr.
Easttom’s technical report.
LEGAL STANDARD

An expert witness may provide opinion testimony 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.

“Rule 702 compels the district courts to perform the critical ‘gatekeeping’
function concerning the admissibility of expert scientific evidence.” United States v.
Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (quoting Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 587 (1993)). This gatekeeping function aims “to ensure
the reliability and relevancy of expert testimony. It is to make certain that an
expert, whether basing testimony upon professional studies or personal experience,
employs in the courtroom the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S.
137, 152 (1999).
In making Rule 702 determinations, district courts are afforded significant

discretion. Kumho Tire, 526 U.S. at 152 (“[T]he trial judge must have considerable
leeway in deciding in a particular case how to go about determining whether
particular expert testimony is reliable.”) Essentially, the Court is tasked with
“ensuring that an expert’s testimony . . . rests on a reliable foundation and is
relevant to the task at hand.” Daubert, 509 U.S. at 597. Specifically, district courts
must consider whether:

(1) the expert is qualified to testify competently regarding the matters
he intends to address; (2) the methodology by which the expert reaches
his conclusions is sufficiently reliable as determined by the sort of
inquiry mandated in Daubert; and (3) the testimony assists the trier of
fact, through the application of scientific, technical, or specialized
expertise, to understand the evidence or to determine a fact in issue.

City of Tuscaloosa v. Hacros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998).
The “burden of laying the proper foundation for the admission of expert
testimony is on the party offering the expert, and the admissibility must be shown
by a preponderance of the evidence.” McCorvey v. Baxter Healthcare Corp., 298
F.3d 1253, 1256 (11th Cir. 2002). Where the expert testimony is found to be
unreliable, it will be found inadmissible. Daubert, 509 U.S. at 595.
Here, Comcast only challenges the second of the three factors outlined in
City of Tuscaloosa: the reliability of the methodologies employed by Dr. Easttom
and Mr. Elam in their component counting and apportionment analyses. (See Doc.
S-228; Doc. S-229.) This factor “entails a preliminary assessment of whether the
reasoning or methodology properly can be applied to the facts in issue.” Daubert,
509 U.S. at 592–93. The reliability of an expert’s methodology can be measured by,
among other things, “(1) whether the expert's theory can be and has been tested; (2)

whether the theory has been subjected to peer review and publication; (3) the
known or potential rate of error of the particular scientific technique; and (4)
whether the technique is generally accepted in the scientific community.” Quiet
Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003).
The expert’s methodology “must be supported by appropriate validation—i.e., ‘good
grounds,’ based on what it is known,” and it is the Court’s responsibility to

determine whether those “good grounds” exist “in light of the particular facts and
circumstances of the particular case.” Daubert, 509 U.S. at 590 (quotation omitted);
Kumho, 526 U.S. at 158.
Still, “it is not the role of the district court to make ultimate conclusions as to
the persuasiveness of the proffered evidence.” Id. Indeed, as the Eleventh Circuit
has established, “[a] district court's gatekeeper role under Daubert is not intended
to supplant the adversary system or the role of the jury.” Maiz v. Virani, 253 F.3d

641, 666 (11th Cir. 2001) (quotation omitted). Instead, “shaky but admissible
evidence” should be attacked via “[v]igorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof.” Daubert, 509
U.S. at 596. Ultimately, “where experts might reasonably differ,” it is the factfinder
that “must decide among the conflicting views of different experts.” Kumho, 526
U.S. at 153.
DISCUSSION

Both motions here relate to damages. 35 U.S.C. § 284 provides that “[u]pon
finding for the claimant the court shall award the claimant damages adequate to
compensate for the infringement, but in no event less than a reasonable royalty for
the use made of the invention by the infringer.” Under section 284, damages
awarded for patent infringement “must reflect the value attributable to the
infringing features of the product, and no more.” Ericsson, Inc. v. D-Link Sys., Inc.,
773 F.3d 1201, 1226 (Fed. Cir. 2014). There are two categories of compensation for
infringement: (1) the patentee’s lost profits and (2) the “reasonable royalty he would

have received through arms-length bargaining.” Lucent Techs., Inc. v. Gateway,
Inc., 580 F.3d 1301, 1324 (Fed. Cir. 2009).
Here, WTV only seeks reasonable royalty damages, which aim “to
compensate the patentee . . . for its lost opportunity to obtain a reasonable royalty
that the infringer would have been willing to pay if it had been barred from
infringing.” AstraZeneca AB v. Apotex Corp., 782 F.3d 1324, 1334 (Fed. Cir. 2014)

(citation omitted). There is “more than one reliable method for estimating
reasonable royalty.” Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1315 (Fed. Cir.
2014). A party can, for example, “use the royalty rate from sufficiently comparable
licenses, value the infringed features based upon comparable features in the
marketplace, or estimate the value of the benefit provided by the infringed features
by . . . comparing the accused product to non-infringing alternatives,” or something
else entirely. Id. In all events, though, “estimating a ‘reasonable royalty’ is not an
exact science.” Id.
A. Comcast’s Motion to Exclude Certain Expert Opinions of Dr.
William C. Easttom II is due to be denied.

Comcast argues that Dr. Easttom’s component counting analysis is
inadmissible because (1) the weights Dr. Easttom assigns to each component do not
relate to the value that the ‘431 Patent contributes to the X1, and (2) the weights
Dr. Easttom assigns are arbitrary and not derived from an identifiable formula or
method. (Doc. 222 at 5–6.) For the reasons below, the Court finds that Comcast’s
criticisms are unwarranted and that Dr. Easttom’s component counting analysis is
admissible. Accordingly, Comcast’s motion to exclude certain opinions of Dr.
Easttom (Doc. 222) is due to be denied.

1. The weights assigned by Dr. Easttom need not correspond to
monetary value for his opinion to be admissible.

As a starting point, it is worth noting that the role of a technical expert is
different than the role of a damages expert. See Finjan, Inc. v. Blue Coat Sys., Inc.,
No. 13-CV-03999-BLF, 2015 WL 4272870, at *3 (N.D. Cal. July 14, 2015) (assessing
the opinions of technical experts regarding infringement separately from the
opinions of damages experts regarding reasonable royalties, even where damages
expert’s opinion was based on technical expert’s report). While technical experts
inspect the accused product and educate the factfinder as to the underlying
technology, damages experts make financial calculations and opine on the proper
methodology to calculate reasonable royalties or lost profits. See Edward G.
Poplawski, Selection and Use of Experts in Patent Cases, 9 Fed. Cir. B.J. 145, 145–
47. (1995). Technical experts often provide testimony on issues that relate directly
to the elements of damages, but they do not typically opine on the monetary value of

a particular component in an accused product. See Apple, 757 F.3d at 1321
(“[P]atent damages experts often rely on technical expertise outside of their field
when . . . valuing the importance of the specific, infringing features in a complex
device” because “[p]atent damages calculations are often intertwined with highly
technical issues precisely because damages must be based on the scope of
infringement, often an involved technical question.”) Thus, a technical expert is not

required to opine on the monetary value attributable to the patented invention for
his opinion to be deemed reliable. See Intel Corp. v. Future Link Sys., LLC, No. CV
14-377-LPS, 2017 WL 2482881, at *4 (D. Del. June 1, 2017) (finding a technical
expert’s analysis admissible where the expert performed an element-by-element
analysis solely considering infringement, not value).
Instead, in cases where the accused product is made up of multiple
components, not all of which include infringing technology, a technical expert must

perform some sort of apportionment, isolating the features of the accused product
that correspond to the patent in suit. See Finjan, 879 F.3d at 1309–10; Mentor
Graphics v. EVE–USA, 870 F.3d 1298, 1299 (Fed. Cir. 2017) (Stoll, K. concurring)
(order denying rehearing on banc) (“[W]here an infringing product is a multi-
component product with patented and unpatented components, apportionment is
required.”) As the cases discussed below illustrate, one method of apportionment
involves identifying the total number of top level components in the accused device
and determining a number, or weight, for each component based on the degree to
which that component infringes upon the asserted patent.

In Finjan, for example, the plaintiff’s technical expert prepared a report on
the issue of infringement, and this report was relied upon by the plaintiff’s damages
expert in her reasonable royalties calculations. Finjan, 2015 WL 4272870, at *9.
Specifically, the damages expert concluded that the technical expert’s report
“suggest[ed] a per-feature apportionment of sales revenue” and found that, of the
twenty-four total features comprising the accused product, nine were infringing. Id.

Based on this determination, the damages expert apportioned the accused product’s
revenue by dividing the number of infringing functions by the total number of
functions and multiplying this fraction by the revenue. Id.
Similarly, in Guardant Health, Inc. v. Foundation Medicine, Inc., the trial
court found that the plaintiff’s technical expert’s opinion was sufficiently reliable
where the expert divided the accused method into sixteen steps and then
determined which of those steps infringed upon the patent in question. No. CV 17-

1616-LPS-CJB, 2020 WL 6742965, at *6 (D. Del. Nov. 17, 2020). The plaintiff’s
damages expert then relied on the technical expert’s opinion to calculate the
monetary value of the infringing steps in the accused method. Id. Both analyses
survived the defendant’s Daubert challenges because they were found to adequately
“fit[] th[e] facts of th[e] case.” Id.
Finally, in Comcast Cable Commc’ns, LLC v. Sprint Commc’ns Co. LP., the
trial court found that the plaintiff’s technical expert’s component counting analysis
was reliable. 218 F. Supp. 3d 375, 389 (E.D. Pa. 2016). There, the technical expert

“separated the overall process of each specific messaging call flow into steps based
on infringing and non-infringing steps,” and the plaintiff’s damages expert used this
report to “apportion[ ] the share of Comcast’s SMS and MMS profitability that can
be attributed to the alleged infringement of the [patent in suit].” Id. As the court
held, there was an absence of caselaw supporting the “assertion that counting
components or features is per se unreliable.” Id.

Here, Dr. Easttom’s apportionment analysis is admissible because it clearly
mirrors the methodologies employed by the technical experts in Finjan, Guardant,
and Comcast. Like those experts, Dr. Easttom identified the accused device’s top
level components, distinguished which components were infringing and non-
infringing, and assigned a weight to each of these components based on the degree
to which the component in question contributed to the infringement alleged. (Doc.
S-238-1 at ¶ 405.) Specifically, Dr. Easttom ascertained that there are seven top

level components in the X1 and found that the ‘431 Patent corresponds to, or drives,
the functionality of 2.08 of these components.2 (Id.) By segregating these

2 Specifically, Dr. Easttom found that of the seven top level components, five had
some subparts which were partially infringing. Three had fifty percent infringing
subparts, and so each of these was weighted at .5, one had twenty five percent
infringing subparts and was weighted at .25, and one had thirty three percent
infringing subparts and was weighted at .33. Summing these infringing weights, as
Mr. Elam ultimately did, yields .5 + .5 + .5 + .25 + .33 = 2.08. (Doc. S-239-1 at ¶ 405;
Doc. S-260-1 at 160.)
components and weighting them by their infringing properties, Dr. Easttom, like
the experts in Finjan, Guardant, and Comcast, facilitated an apportionment of the
X1’s monetary value by WTV’s damages expert, Mr. Elam. (See Doc. S-260-1 at

162.) Thus, though Dr. Easttom’s report does not measure the value of the ‘431
Patent with respect to the set top box, it need not do so because it is not presented
as an economic analysis, like Mr. Elam’s report.
As the case law makes clear, a technical expert need not measure the
economic value of particular infringing components in order to contribute to a
damages calculation. Rather, the technical expert’s report on infringement, which

distinguishes the infringing components from the non-infringing components in the
accused product, provides a proportion by which a damages expert can determine
the economic value added by the infringing components to the accused product as a
whole. Accordingly, Dr. Easttom’s component counting analysis is not unreliable
merely because it does not assign monetary value to each of the components. At
bottom, Dr. Easttom is a technical expert, which makes Comcast’s attempt to hold
him to standards applicable only to damages expert misplaced.

2. The weights assigned by Dr. Easttom are not arbitrary because
they are derived from an identifiable formula.

Comcast’s second challenge to Dr. Easttom’s analysis is that the weights
assigned by Dr. Easttom are arbitrary and not derived from an identifiable formula
or method. (Doc. 222 at 6.) Specifically, Comcast asserts that Dr. Easttom’s
component counting analysis is inadmissible because “it fails to describe or apply
any principle that explains how his comparison of each component to the claim
translates to a numeric apportionment value.” (Id. at 15.) This challenge also fails.
As the Federal Circuit has made clear, estimation does not render an

apportionment unreliable or unreasonable. See Aqua Shield v. Inter Pool Cover
Team, 774 F.3d 766, 771 (Fed. Cir. 2014) (explaining that royalty calculations often
involve “approximation and uncertainty”); Virnetx, Inc. v. Cisco Sys., Inc., 767 F.3d
1308, 1328 (Fed. Cir. 2014) (stating that “absolute precision” is not required in
apportionment, as “it is well-understood that this process may involve some degree
of approximation and uncertainty”). While an expert’s methodology may not be a

“black box into which data is fed at one end and from which an answer emerges at
the other,” such that “the jury cannot see how the pieces fit together or how the data
drives the conclusion,” “it is well-understood that this process of assigning value to
a feature that may not have ever been individually sold may involve some degree of
approximation and uncertainty.” Open Text S.A. v. Box, Inc., No. 13-CV-04910-JD,
2015 WL 349197, at *6 (N.D. Cal. Jan. 23, 2015); Lawrence v. Raymond Corp., No.
09-CV-1067, 2011 WL 3418324, at *7 (N.D. Ohio Aug. 4, 2011), aff’d, 501 Fed. Appx.

515 (6th Cir. 2012); Shopify Inc. v. Express Mobile, Inc., No. CV 19-439-RGA, 2021
WL 4288113, at *21 (D. Del. Sept. 21, 2021) (quotation omitted). Thus, courts have
found that where an expert “explains the facts underlying his apportionment
percentages, how they connect to his apportionment percentages, and the
methodology he used to arrive at his apportionment percentages” his apportionment
rates are not “pulled out of thin air,” and his report will be found reliable. NetFuel,
Inc. v. Cisco Sys. Inc., No. 5:18-CV-02352-EJD, 2020 WL 1274985, at *9 (N.D. Cal.
Mar. 17, 2020).
Where the technical expert’s analysis is clearly related to the facts of the

case, relies on the defendant’s technical documents, and adheres to a reliable
apportionment methodology, trial courts have declined to exercise their discretion to
exclude such expert opinions.3 See, e.g., Shopify, 2021 WL 4288113, at *21
(refusing to strike patentee’s technical expert’s apportionment opinion, on which the
patentee’s damages expert relied, because the technical expert provided “a specific
analysis explaining why he assigned each particular percentage value,” his opinion

was “tied to the facts of the case,” and thus his opinion was not “classic ipse dixit”);
Centripetal Networks, Inc. v. Cisco Sys., Inc., 492 F. Supp. 3d 495, 594–95 (E.D. Va.
2020) (refusing to strike patentee’s technical expert’s apportionment opinion
testimony for unreliability because the expert (1) used the defendant’s technical
documents to identify the top level functions of each of the accused products; (2)
“identified which of those top-level functions for each product are implicated by the

3 The cases that Comcast cites to support the exclusion of an expert opinion
purportedly failing “to describe and apply a principle for translating a qualitative
methodology into a numeric value” are not on point. (Doc. 222 at 16.) Specifically,
LaserDynamics deals with a damages expert’s opinion, not a technical expert’s
opinion. 694 F.3d at 55. And in NetFuel, the court found inadmissible an expert’s
opinion offering only “vague, qualitative descriptions without some indication as to
the weight or value attributed to each feature.” 2020 WL 1274985, at *8. Here, Dr.
Easttom assigned clear weight to each feature, so the flaws in the expert’s report in
NetFuel are not present here.
asserted patents and their asserted claims”; and (3) “highlighted all of the materials
he relied upon in [his] analysis”).
Instead, disputes about the methodology behind the technical analysis go to

the weight of the apportionment, which can be explored further via cross-
examination. See Osseo Imaging, LLC v. Planmeca USA Inc., No. CV 17-1386-LPS,
2020 WL 6318724, at *9 (D. Del. Oct. 28, 2020) (denying defendant’s motion to
strike plaintiff’s technical expert’s apportionment opinion because “Defendant will
have the opportunity to cross-examine [the expert] at trial regarding methodology
employed and [the jury] can evaluate how [Plaintiff’s damages expert] incorporated

the information from [Plaintiff’s technical expert] in reaching his damages
opinion”); Traxcell Techs., LLC v. AT&T Corp., No. 2:17-CV-00718-RWS-RSP, 2019
WL 4470618, at *3 (E.D. Tex. Sept. 18, 2019), aff’d sub nom. Traxcell Techs., LLC v.
Sprint Commc'ns Co. LP, 15 F.4th 1121 (Fed. Cir. 2021) (denying motion to exclude
technical expert’s apportionment analysis where (1) the expert’s methods of
apportionment were reliable because other experts in the field would likely have
relied upon the same materials that the expert did and (2) the challenges to the

expert’s opinion could be addressed on cross-examination); Network-1 Techs., Inc. v.
Alcatel-Lucent USA, Inc., No. 6:11-CV-492-RWS-KNM, 2017 WL 4020591, at *7
(E.D. Tex. Sept. 13, 2017) (denying motion to exclude patentee’s technical expert’s
testimony on apportionment––specifically, his opinion that “at least 50% of the
benefit of [the accused product]’s functionality is attributable to the [patent in
suit]”––and finding that the accused infringer’s challenge went to the weight of [the
expert]’s apportionment rather than its admissibility”).
Here, throughout the many pages of Dr. Easttom’s expert report outlining his

component counting analysis, Dr. Easttom explains his methodology in sufficient
detail to render it reliable. Dr. Easttom’s component counting analysis begins by
identifying the seven top level components and then dividing each top level
component into its various subparts or subfunctions to determine which of these
various subparts or subfunctions are infringing. After determining which of the
subparts or subfunctions of a particular top level component are infringing, Dr.

Easttom then assigns a weight to the top level component reflecting the portion of
that component comprised of infringing subparts or subfunctions.
For example, in Dr. Easttom’s analysis of a top level component believed to
infringe on Claim 1’s limitation of a “server resident on a network containing
descriptive program data about video content available from one or more MSOs and
one or more non-MSOs,” Dr. Easttom found that the component was twenty five
percent infringing because its two core subparts infringed at fifty percent and zero

percent, respectively.4 (Doc. S-238-1 at ¶¶ 397–98.) Specifically, as Dr. Easttom
explained, the first subpart of the component only met the “available from one or
more MSOs” portion of the limitation, but not the “one or more non-MSOs” portion
of the limitation, so it was only half infringing. (Id.) Meanwhile, the second

4 Notably, Dr. Easttom’s component counting analysis is not offered in a vacuum,
but rather, at the end of a 258-page report opining, in detail, on the ways in which
the X1 allegedly infringes the ‘431 Patent. (See Doc. S-239-1.)
subpart supported X1 features unrelated to the relevant limitation, so it was not
infringing at all. (Id.) Given that half of one-half is one-quarter, Dr. Easttom’s
weight assigned to the entire top level component in question is not “plucked out of

thin air” as Comcast suggests. The same sort of analysis is applied to other top
level infringing components.
For example, for a top level component with three subparts, only one of which
is found to be infringing on Claim 1, Dr. Easttom assigned the entire component a
weight of .33, representing the one-third of the components’ subparts whose
functionality corresponds to the ‘431 Patent. (Id. at ¶ 404.) And for two other top

level components which perform some tasks that infringe and some tasks that do
not infringe, Dr. Easttom opined that the components deserved a weight of .5,
reflecting the 50 percent infringement. (Id. at ¶¶ 391–95.)
This is a clear example of an apportionment methodology that has already
been deemed sufficiently reliable by various other trial courts. See Network-1
Techs., 2017 WL 4020591, at *7; Shopify, 2021 WL 4288113, at *21; Centripetal,
492 F. Supp. 3d at 594–95. Given that Dr. Easttom’s component counting technique

is “generally accepted in the scientific community”—as evidenced by its employment
by other technical experts—the Court finds that Dr. Easttom’s analysis is reliable.
Comcast’s complaint that Dr. Easttom’s weights are unrepresentative of “the
contribution the X1’s Platform’s components make to the claims of the ‘431 Patent
to the X1 Platform,” is targeted at Dr. Easttom’s conclusions, not the processes by
which he arrived at them. (Doc. S-228 at 13.) Ultimately, such alleged flaws are “of
a character that impugn the accuracy of [Dr. Easttom’s] results, not the general
scientific validity of his methods.” Quiet Tech., 326 F.3d at 1345. Thus, the proper
mechanisms for challenging Dr. Easttom’s opinions are cross-examination and

presentation of contrary opinions and evidence. See Daubert, 509 U.S. at 596
(“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.”)
Accordingly, Comcast’s Motion to Exclude Certain Expert Opinions of Dr.
William Easttom II is due to be denied.

B. Comcast’s Motion to Exclude the Opinions of Kyle P. Elam is due
to be denied.

Comcast has also moved to exclude the opinions of WTV’s damages expert,
Mr. Elam, contending that Mr. Elam’s methods are inadmissible because (1) he
begins with an improper royalty base, (2) his apportionment methods target
quantities other than the value of the claimed invention to that base, and (3) he
applies his running royalties analysis years into the future so as to assign WTV
damages for alleged infringement that has not occurred. The Court finds that, for
the reasons below, Mr. Elam’s expert damages opinion is admissible and
accordingly, Comcast’s Motion to Exclude the Opinions of Mr. Kyle P. Elam is due to
be denied.
As the Federal Circuit has repeatedly held, “the essential requirement for
reliability” for a damages expert’s opinion evaluated 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. & Indus.
Research Org. v. Cisco Sys. Inc., 809 F.3d 1295, 1301 (Fed. Cir. 2015) (quotation
omitted). “As a substantive matter, it is the value of what was taken that measures

a reasonable royalty under 35 U.S.C. § 284.” Ericsson, 773 F.3d at 1226 (quotation
omitted). This amounts to “only the value of the infringing features of an accused
product.” Id.
Where the accused device contains multiple components, some of which are
alleged to be infringing and some of which are not, the patentee must give evidence
apportioning its “damages between the patented feature and the unpatented

features, and such evidence must be reliable and tangible, and not conjectural or
speculative.” Finjan, 879 F.3d at 1310 (quotation omitted). A patentee’s “damages
expert must provide a specific economic analysis to support an opinion that
reasonable royalties should be apportioned to reflect nonpatented characteristics of
a multi-factor product.” Sherwin-Williams Co. v. PPG Indus., Inc., No. CV 17-1023,
2020 WL 5077547, at *5 (W.D. Pa. Aug. 27, 2020). And the admissibility of an
expert damages opinion hinges on the expert’s ability to separate the value of the

allegedly infringing features of the accused product from all of the accused product’s
other features. VirnetX, 767 F.3d at 1329. Critically, “[n]o matter what the form of
the royalty, a patentee must take care to seek only those damages attributable to
the infringing features.” Id. at 1326.
1. Mr. Elam’s royalty base is proper because the entire market value
rule is not applicable in this scenario.

Comcast first argues that Mr. Elam’s apportionment is inadmissible because
it violates the entire market value rule (“EMVR”). According to the EMVR, “a
patentee may be awarded damages as a percentage of revenues or profits
attributable to the entire product” if it can prove that “the patented feature drives
the demand for an entire multi-component product.” LaserDynamics, Inc. v.
Quanta Computer, Inc., 694 F.3d 51, 67 (Fed. Cir. 2012). A patentee may also rely
on the rule if it can show that the patented feature “was of such paramount
importance that it substantially created the value of the component parts.” Rite-
Hite Corp. v. Kelley Co., 56 F.3d 1538, 1549 (Fed. Cir. 1995) (quotation omitted).
Admitting evidence of the entire market value, “only serve[s] to make a patentee’s
proffered damages amount appear modest by comparison, and to artificially inflate

the jury’s damages calculation beyond that which is adequate to compensate for the
infringement.” LaserDynamics, 694 F.3d at 67 (quotation omitted).
Still, the Federal Circuit has limited the EMVR’s applicability such that the
rule is often inappropriate for damages calculations. See Virnetx, 767 F.3d at 1326
(“[W]hen claims are drawn to an individual component of a multi-component
product, it is the exception, not the rule, that damages may be based upon the value
of the multi-component product.”); SynQor, Inc. v. Artesyn Tech., Inc., 709 F.3d

1365, 1383 (Fed. Cir. 2013) (“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 and substantially creates the value of the component
parts.” (emphasis added)); Cornell Univ. v. Hewlett-Packard Co., 609 F. Supp. 2d
279, 285 (N.D. N.Y. 2009) (“The entire market value rule indeed permits damages
on technology beyond the scope of the claimed invention, but only upon proof that

damages on the unpatented components or technology is necessary to fully
compensate for infringement of the patented invention.” (emphasis added)).
Essentially, to support use of the EMVR, a patentee must show that consumers
would not buy the accused product at all without the patented feature. See Lucent
Tech., 580 F.3d at 1337–38. As the Federal Circuit explained in LaserDynamics:
It is not enough to merely show that the [patented feature] is viewed as
valuable, important, or even essential to the use of the [accused
product]. . . . [I]f given a choice between two otherwise equivalent [types
of accused products], only one of which practices the [patented feature],
proof that consumers would choose the [accused product] having the
[patented feature] says nothing as to whether the presence of that
functionality is what motivates consumers to buy an [accused product]
in the first place. It is this latter and higher degree of proof that must
exist to support an entire market value theory.

694 F.3d at 68.
Here, Mr. Elam has neither opined that the ‘431 Patent’s features were the
sole driver of demand for the X1 devices, nor that WTV should receive damages
based on the uninfringed portions of the X1 device. (Doc. S-260-1 at ¶¶ 90–92, 130.)
Instead, Mr. Elam has opined that at the time of the hypothetical royalties
negotiation, “approximately 20% (33% times 62%) of Comcast subscribers were
using” both MSOs and non-MSOs and “wanted a universal listing across sources.”
(Id. at ¶ 133.) Thus, according to Mr. Elam, only one-fifth of all Comcast
subscribers were seeking the functionality provided by the ‘431 Patent at the time
of the hypothetical royalties negotiation. (Id.) This is a far cry from stating, as the
EMVR requires, that the presence of the ‘431 Patent’s functionality in the X1 is
what motivates consumers to buy a set top box in the first place. The EMVR

therefore does not apply to the royalties calculations at issue, as Mr. Elam has not
suggested in any portion of his expert report that the X1’s features corresponding to
the ‘431 Patent are the basis for customer demand for the product writ large.
Noting that Mr. Elam has not evinced an intention to apply the EMVR to his
calculations, the Court turns to the royalty base selected by Mr. Elam to determine
whether it improperly implicates the EMVR. The Court finds that it does not. “The

EMVR applies when an expert performs no apportionment, instead using the entire
value of a product as the royalty base.” Rembrandt Social Media, LP v. Facebook,
Inc., 22 F. Supp. 3d 585, 593 (E.D. Va. 2013); see also Kori Corp. v. Wilco Marsh
Buggies and Draglines, Inc., 761 F.2d 649, 656 (Fed. Cir. 1985) (“The district court
applied the ‘entire market value rule’ and declined to apportion the damages
between the value of the unpatented and patented features of the machines sold
and rented.”). A damages expert’s royalty base selection does not implicate the

EMVR where the expert has apportioned the profits earned on the accused product
between the patented and unpatented features because “the entire market value
rule is an exception to the rule requiring apportionment.” Sloane Valve Co. v. Zurn
Indus., Inc., 33 F. Supp. 3d 984, 911 (N.D. Ill. 2014). Further, merely using the “full
expected retail price” of the accused product as an “input” in a damages calculation
“does not invoke the entire market value rule.” Biscotti Inc. v. Microsoft Corp., No.
2:13-CV-01015-JRG-RSP, 2017 WL 2536962, at *6 (E.D. Tex. May 18, 2017);
SimpleAir, Inc. v. Google Inc., No. 2:14-CV-11, 2015 WL 5895401, at *3 (E.D. Tex.
2015) (explaining that an expert who “isolate[d] the value of [the] patented feature,

separate[d] it from the value of the unpatented features, subtract[ed] any costs
attributable to [the Defendant], and then use[d] the Georgia-Pacific factors to
estimate how the Plaintiff and Defendants would split any such incremental profit
at the hypothetical negotiation table” did not implicate the EMVR).
While Mr. Elam began his calculation of the royalty base with the X1 set top
box’s entire value, he then performed several separate apportionments winnowing

down that base before arriving at the set top box’s implied value. (Doc. S-260-1 at
160.) Mr. Elam started with the monthly fee charged by Comcast for the set top box
and then reduced this value using data regarding the number of set top boxes per
subscriber, the value of the non-patented features of the set top box, and as the
share of customers that would likely use the patented features in the set top box.5
(Id. at ¶ 132.) After this apportionment Mr. Elam arrived at a royalty base, which
was just a fraction of the monthly fee amount with which he started. (Id. at 160.)

This royalty base reflected only the implied value of the set top box, namely, the
value of the set top box’s features corresponding to the ‘431 Patent. (Id.) Mr.

5 It is worth noting that Comcast’s later challenge to Mr. Elam’s second
apportionment method appears to concede that Mr. Elam’s royalty base is the
narrowed, apportioned base, not the entire market value. (See Doc. S-229 at 19.)
Specifically, Comcast states that Mr. Elam applies a certain percentage to his
royalty base and cites to Mr. Elam’s calculations applying that percentage to the
implied value of the set top box, not the entire market value of the set top box. (Id.
(citing Doc. S-260-1 at 162).)
Elam’s royalty base therefore does not violate the EMVR merely because the
starting point of his royalty base calculations was the fee charged per set top box—a
proxy for the market value of the accused device. Rather, because the royalty base

proposed by Mr. Elam was just the implied value of the set top box, equal to roughly
one-tenth of the entire market value of the set top box, Mr. Elam’s royalty base
selection is admissible.
2. Mr. Elam’s two methods of apportionment are admissible.
Next, Comcast argues that Mr. Elam’s damages calculations also must be
excluded because both of his methods fail to apportion the royalty base to reflect the

incremental value of the patented technology. (Doc. S-229 at 14.) The Court
disagrees and finds that both of Mr. Elam’s methods of apportionment are
admissible.
As outlined above in the context of Dr. Easttom’s apportionment opinion,
apportionment is not an “exact science.” Apple, 757 F.3d at 1315. “[A]pportionment
can be addressed in a variety of ways, including by careful selection of the royalty
base to reflect the value added by the patented feature [or] . . . by adjustment of the

royalty rate so as to discount the value of a product’s non-patented features; or by a
combination thereof.” Exmark Mfg. Co. v. Briggs & Stratton Power Prods. Grp.,
LLC, 879 F.3d 1332, 1348 (Fed. Cir. 2018) (quotation omitted).
a. Method 1 apportions the invention’s value.
Comcast argues that Mr. Elam’s first method of apportionment is improper
because merely estimating the percentage of Comcast subscribers who would have
used the ‘431 Patent’s features at the time of the hypothetical royalties negotiation
fails to reflect the value of the accused technology. (Doc. S-229 at 15.) WTV
responds that Mr. Elam “took several other steps to isolate the value of patented

features, and both precedent and economic logic support that evidence regarding
use of patented features relates to value.” (Doc. 239 at 21.) The Court finds that
this disagreement goes to the weight of the evidence and Mr. Elam’s calculation of a
reasonable royalty via “Method No. 1” are thus admissible.
In GREE, Inc. v. Supercell Oy, for example, the patentee’s expert determined
a reasonable royalty rate by multiplying the likelihood of being a paying user with

the percentage of users viewing a feature as important. No. 2:19-CV-00070-JRG-
RSP, 2020 WL 4057640, at *5 (E.D. Tex. July 20, 2020). The defendant argued that
neither factor had “any tie to the value of the patented feature.” Id. The court
found that this criticism went to the weight of the evidence, specifically because the
expert “provided a basis for arriving at these numbers” and his “analysis was based
on uncontested data specific to each case.” Id.
And in Via Vadis, LLC v. Blizzard Ent., Inc., the patentee’s expert performed

a similar calculation, “multipl[ying] a royalty base calculated from estimates of the
forecasted cumulative number of users of the Accused Products from the perspective
of the 2006 hypothetical negotiation by a royalty rate calculated from the market
value of a benchmark product.” No. 1:14-CV-00810-LY, 2021 WL 5908599, at *2
(W.D. Tex. Dec. 14, 2021) (internal quotation marks and brackets omitted). There,
the court held that the patentee’s expert’s estimates regarding the customers usage
of the accused product were “a question of fact that will go to the weight to be
accorded to [the expert]’s opinions, not to the correctness of his methodology or the
admissibility of his opinions under Daubert.” Id. at *3.

Here, Mr. Elam used data obtained from Comcast to determine that about
twenty percent of Comcast subscribers used non-MSOs and wanted features that
would allow them to search or access content provided by MSOs and non-MSOs.
(Doc. S-260-1 at 160.) Like the experts in GREE and Via Vadis, Mr. Elam applied
this information regarding user preferences to calculate a royalty by multiplying
that percentage by the implied value of the accused product. (Id.) Thus, Mr. Elam’s

analysis is reliable. As the courts held in both GREE and Via Vadis, whether or not
the reasonable royalty arrived at via a damages expert’s apportionment calculations
accurately reflects the value of the patented features is a question better reserved
for a fact finder. Comcast’s complaint is not with Mr. Elam’s methodology, but with
the weight he places on the data relied upon in his analysis. Once again, “vigorous
cross-examination, presentation of contrary evidence, and careful instruction on the
burden of proof” are the best means of addressing admissible analyses about which

reasonable experts might disagree. Daubert, 509 U.S. at 596.
b. Method 2 apportions the invention’s value.
Comcast’s critiques of Mr. Elam’s second method of apportionment are
predicated largely on the alleged failures of Dr. Easttom’s component counting
analysis. (Doc. S-229 at 18.) After reiterating the purported flaws of Dr. Easttom’s
opinion, Comcast argues that “Mr. Elam adds no additional opinions that transform
Dr. Easttom’s analysis into a reliable apportionment methodology,” and that he
“provides no analysis of how the patented features add value to X1.” (Id. at 19.) As
noted, however, Comcast’s critiques of Dr. Easttom’s opinions go to the weight of his

analysis and do not provide a basis to exclude the opinions of Mr. Elam. Because
the Court has already determined that Dr. Easttom’s analysis is reliable, the Court
will not address Comcast’s efforts to reintroduce their critiques of Dr. Easttom’s
analysis in its motion to exclude the opinions of Mr. Elam.
Comcast argues that “Mr. Elam provides no analysis of how the patented
features add value to X1” and instead “simply averages the weights provided by Dr.

Easttom and applies that average (30%) to his royalty base.” (Doc. S-229 at 19.)
This, Comcast argues, does not accurately account for the economic contribution of
the patented functionality to the X1 platform. (Id.) The Court finds this argument
unconvincing.
Mr. Elam’s analysis follows the same methodology deemed admissible in
Shopify, in which the patentee’s damages expert relied on the patentee’s technical
expert’s opinions on the technical importance of the patented features in his

damages analysis. 2021 WL 4288113, at *20. There, the alleged infringer sought to
exclude the opinions of patentee’s technical expert as well as the opinions of the
patentee’s damages expert based on the patentee’s technical expert’s analysis. Id.
Specifically, the alleged infringer contended, as Comcast does here, that the
damages expert “fail[ed] to account for the incremental benefit of the patented
invention over the prior art.” Id. at *21. The court in Shopify found that because
the technical expert had isolated the incremental value of the patented features,
and the damages expert, relying on the technical expert’s report, had limited
damages to the incremental benefit that the patented technology provided, the

opinion was admissible. Id.
Similarly, in Odyssey Wireless, Inc. v. Apple Inc., the court refused to strike a
patentee’s damages expert’s opinion where the expert relied on a technical expert’s
report to conduct his apportionment analysis. No. 15-CV-01735-H-RBB, 2016 WL
7644790, at *8 (S.D. Cal. Sept. 14, 2016). The defendants argued that the technical
expert’s opinion that the patents in suit were responsible for 20 percent of the

incremental benefit over the prior art was insufficient, as a matter of law, to
support the damages expert’s opinion as to the patented feature’s value. Id. at *12.
The court disagreed, explaining that “[t]he credibility of that opinion and the
underlying evidence are matters for the jury, not the Court.” Id. In particular, the
court stated, “Defendants may disagree with [the damages expert]’s conclusion that
the patents-in-suit qualify as high value patents. But the test under Daubert is not
the correctness of the expert’s conclusions.” Id. (quotation omitted).

Finally, in Centripetal Networks, the court found a patentee’s damages
expert opinion reliable where the expert had relied on the technical apportionment
analysis of the patentee’s damages expert. 492 F. Supp. 3d at 597. There, the
technical expert, like Dr. Easttom, “opined on each of the infringing products, and
determined how many of the top level functions were implicated by infringement of
the asserted patents” and then “determined an apportionment percentage for each
of the infringing products based off this analysis.” Id. at 596. The damages expert
then relied on this report and “applied these apportionment percentages to total
sales revenues from the infringing products since the date of first infringement.” Id.

at 597. In essence, the damages expert applied the technical expert’s conclusions to
the monetary value of the accused product—measured in total sales revenue—for
the purposes of apportionment, and the court agreed with this analysis. Id.
Shopify, Odyssey Wireless, and Centripetal are instructive. Here, Dr.
Easttom determined that the ‘431 Patent corresponded to, or infringed upon, 30
percent of the top level components in the X1 set top box. (Doc. S-260-1 at 161.)

Mr. Elam then applied this percentage to the implied value of the set top box to
determine the value of the patented features specifically. (Id. at 162.) In doing so,
Mr. Elam addressed the monetary value of the X1’s allegedly infringing features.
(Id.) By applying Dr. Easttom’s apportionment percentages to the sales price of the
accused product, Mr. Elam employed a method that has been found reliable by a
number of other courts to determine the economic contribution of the patented
functionality to the accused platform. Accordingly, Mr. Elam’s second method of

royalty rate calculation is admissible.
3. Mr. Elam’s assignment of damages for years of purported post-
trial, future infringement is not improper.

Finally, Comcast argues that even if Mr. Elam’s damages calculations
methods are admissible, they need to be limited because they effectively award
“future damages” by running the royalty rate well beyond the scheduled trial date.
(Doc. S-229 at 20.) Under Comcast’s construction of Mr. Elam’s royalty rate,
Comcast could be required to pay for past harms years after the Court has entered a
final judgment in this case. (Id. at 19.) The Court finds this construction and
argument unfounded.

The patentee has the burden of proving damages and may elect, as WTV has
done here, to seek compensation via the reasonable royalty the patentee would have
received through arms-length bargaining with the alleged infringer. See Panduit
Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152, 1157 (6th Cir. 1978). A
reasonable royalty is an amount “which a person, desiring to manufacture and sell a
patented article, as a business proposition, would be willing to pay as a royalty and

yet be able to make and sell the patented article, in the market at a reasonable
profit.” Goodyear Tire and Rubber Co. v. Overman Cushion Tire Co., 95 F.2d 978,
984 (6th Cir. 1937).
Though “damages . . . by definition covers only past harm” not “future use of
[the patentee’s] patents,” many courts have used reasonable royalty and damages
interchangeably to reflect the form of compensation paid to a patentee after
infringement has taken place. Whitserve, LLC v. Computer Packages, Inc., 694

F.3d 10, 35 (Fed. Cir. 2012); see Panduit Corp, 575 F.2d at 1158 (“The setting of a
reasonable royalty after infringement cannot be treated . . . as the equivalent of
ordinary royalty negotiations among truly ‘willing’ patent owners and licensees.”);
ResQNet.com, Inc. v. Lansa, Inc., 594 F.3d 860, 872 (Fed. Cir. 2010) (“[A]
reasonable royalty may permissibly reflect ‘[t]he fact that an infringer had to be
ordered by a court to pay damages, rather than agreeing to a reasonable royalty.’”
(quotation omitted)); Applied Med. Resources Corp. v. U.S. Surgical Corp., 435 F.3d
1356, 1361 (Fed. Cir. 2006) (“Consistent with our precedent, reasonable royalty
damages are not calculated in a vacuum without consideration of the infringement

being redressed.”); AstraZeneca AB, 782 F.3d at 1343. (“The royalty base for
reasonable royalty damages cannot include activities that do not constitute patent
infringement, as patent damages are limited to those ‘adequate to compensate for
the infringement.’” (quotation omitted)).
“As compared to lump-sum fees, royalty plans both draw out payments over
time and tie those payments, in each month or year covered, to a product’s

commercial success.” Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 453
(2015). Reasonable royalties may run until the patent covered in the parties’
hypothetically negotiated licensing agreement expires. Brulotte v. Thys Co., 379
U.S. 29, 30 (1964). That is, the term of the licensing agreement is assumed to be
the remaining life of the patent. See Scheiber v. Dolby Laboratories, Inc., 293 F.3d
1014, 1017 (7th Cir. 2002) (“When the patent term ends, the exclusive right to
make, use or sell the licensed invention also ends. Because the invention is

available to the world, the license in fact ceases to have value.”).
Mr. Elam states that the damages under both of his methods of
apportionment extend through June 2026 because the ‘431 Patent is set to expire on
July 10, 2026. (Doc. S-260-1 at ¶¶ 2, 32.) It is clear from Mr. Elam’s report,
however, that by damages, he means “running royalty.” (See Doc. S-260-1 at ¶ 31.)
For example, he says “Comcast would have wanted to obtain a license for the ‘431
Patent from WTV until the expiration of the ‘431 Patent in July 2026.” (Id. at ¶ 72.)
Later he says, “Comcast and WTV would have agreed to a non-exclusive,
sublicensable, running royalty license agreement” that would be assessed per set

top box “from September 2016 to July 2026.” (Id. at ¶ 138.) It is also worth noting
Comcast’s rebuttal damages expert, Dana Trexler, also calculates a reasonable
royalty through 2026 up until the expiration of the ‘431 Patent.6 (See Doc. S-261-3
at 14–15.)
Thus, by calculating his running royalty through 2026, Mr. Elam is not
including damages for future, post-trial infringement, as Comcast contends.

Instead, he seems to be stating that at the instance of first infringement, at the
time of the hypothetical negotiation, Comcast would have agreed to pay a royalty to
WTV to use the ‘431 Patent in its X1 device, and that the royalty would run through
the life span of the patent, specifically to 2026.
Accordingly, Comcast’s motion to exclude Mr. Elam’s expert opinions is due to
be denied.
CONCLUSION

Rule 702 grants the Court discretionary authority to determine an expert’s
reliability under the particular facts and circumstances of a given case. See Kumho
Tire, 526 U.S. at 158. Here, the Court finds that both Dr. Easttom’s technical

6 Ms. Trexler states that her “lump sum reasonable royalty” is “[c]alculated through
August 20, 2026, the expiration of the ‘431 Patent.” (Doc. S-261-3 at 14–15.) Thus,
Mr. Elam and Ms. Trexler seem to disagree about the exact day that the ‘431 Patent
expires and, consequently, the precise length of the period through which a
reasonable royalty should run.
analysis and Mr. Elam’s damages analysis are admissible because they employ
methodologies that have clearly been accepted within the relevant scientific and
accounting communities in the context of determining a reasonable royalty rate.
Accordingly, Comcast’s Motions to Exclude the Opinions of Mr. Elam and Dr.
Easttom (Doc. 222; Doc. 223) are DENIED.
ORDERED at Fort Myers, Florida, on June 9, 2022.

PAD, ChatelhonLi
JOHN L. BADALAMENTI
UNITED STATES DISTRICT JUDGE

33

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10110257. Public record. Not legal advice.