Board of Regents, The University of Texas System v. Boston Scientific Corporation ( 2022 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE BOARD OF REGENTS, THE UNIVERSITY OF TEXAS SYSTEM and TISSUEGEN, Inc. Plaintiffs, v. Civil Action No. 18-392-GBW BOSTON SCIENTIFIC Corp. Defendant. MEMORANDUM ORDER Plaintiffs TissueGen, Inc. (“TissueGen”) and the Board of Regents, The University of Texas System (“UTBOR”) (collectively, “UT”) allege that Defendant Boston Scientific Corp.’s (“BSC”) “Synergy” brand coronary stents (the “Accused Products”) infringe U.S. Patent No. 6,596,296 (“the ’296 patent”). D.I. 124 1-3, 79. Pending before the Court are UT’s Daubert Motion to Exclude Testimony of David A. Haas (D.I. 191) and BSC’s Motion to Exclude Expert Testimony (D.I. 199) (the “Motions”). Both parties argue that the opposing damages expert fails to properly apportion damages between patented and unpatented features of the Accused Products. See D.I. 192 at 1; D.I. 200 at 40. The Court denies the Motions because both experts had good grounds for their apportionment analyses. ! I. LEGAL STANDARD A. Motions to Exclude Evidence In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), the Supreme Court held that Federal Rule of Evidence 702 creates “a gatekeeping role for the [trial] ' The Court has reviewed the parties’ briefing, D.J. 192; D.I. 212; D.I. 219; D.I. 200; D.I. 214; D.I. 220, writes for the benefit of the parties, and assumes familiarity with the case. judge” in order to “ensur[e] that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Rule 702 provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise 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. As the Third Circuit has explained, Rule 702 embodies a trilogy of restrictions on expert testimony: qualification, reliability and fit. Qualification refers to the requirement that the witness possess specialized expertise. We have . . . [held] that a broad range of knowledge, skills, and training qualify an expert. Secondly, the testimony must be reliable; it must be based on the methods and procedures of science rather than on subjective belief or unsupported speculation; the expert must have good grounds for his o[r] her belief. In sum, Daubert holds that an inquiry into the reliability of scientific evidence under Rule 702 requires a determination as to its scientific validity. Finally, Rule 702 requires that the expert testimony . . . must be relevant for the purposes of the case and must assist the trier of fact. Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404-05 (3d Cir. 2003) (cleaned up); Kuhar v. Petzl Co., 2022 WL 1101580, at *7 (3d Cir. Apr. 13, 2022) (noting the same trilogy). Rule 702 “‘has a liberal policy of admissibility[,]’” Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008) (citation omitted); see also United States v. Scripps, 599 F. App’x 443, 447 (3d Cir. 2015) (same), as “the question of whether the expert is credible or the opinion is correct is generally a question for the fact finder, not the court[,]” Summit 6, LLC v. Samsung Elecs. Co., Ltd., 802 F.3d 1283, 1296 (Fed. Cir. 2015). “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.” Daubert, 509 USS. at 596; see Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 83 (3d Cir. 2017) (quoting Daubert, 509 U.S. at 596). B. Apportionment of Patent Damages “A patentee is only entitled to a reasonable royalty attributable to the infringing features [of an accused product]. The patentee ‘must in every case give evidence tending to separate or apportion the defendant’s profits and the patentee’s damages between the patented feature and the unpatented features.’” Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc., 904 F.3d 965, 977 (Fed. Cir. 2018) (quoting Garretson v. Clark, 111 U.S. 120, 121 (1884)); see First Quality Tissue, LLC v. Irving Consumer Prod. Ltd., 2022 WL 958089, at *12 (D. Del. Mar. 30, 2022) (quoting Power Integrations, 904 F.3d at 977). Thus, “to be admissible, all expert damages opinions must separate the value of the allegedly infringing features from the value of all other features.” Commonwealth Sci. & Indus. Rsch. Organisation v. Cisco Sys., Inc., 809 F.3d 1295, 1301 (Fed. Cir. 2015) (citation omitted). “If it can be shown that the patented feature drives the demand for an entire multi-component product, a patentee may be awarded damages as a percentage of revenues or profits attributable to the entire product.” LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51, 67 (Fed. Cir. 2012). Apportionment must rely upon “‘reliable and tangible’ evidence.” Ericsson, Inc. v. D- Link Sys., Inc., 773 F.3d 1201, 1226 (Fed. Cir. 2014) (quoting Garretson, 111 U.S. at 121). “