Expert Witness Opinions Tossed in Patent Case

     SAN FRANCISCO (CN) – A federal judge denied a suspected patent troll “a second bite at the apple” in an ongoing infringement suit, tossing testimony from one of its expert witnesses.
     U.S. District Judge William Alsup nixed the testimony of damages expert for Network Protection Sciences John Jarosz, finding his damages report “improperly based royalties on the entire market value of the accused products.”
     Texas-based NPS sued network security company Fortinet in July 2010 in the federal court in Tyler, Texas, alleging the defendant’s “FortiOS” security operating system infringes on its patent for an “Apparatus and method for providing a secure gateway for communication and data exchanges between networks.”
     The case was moved to the Northern District of California in March 2012.
     Alsup found Jarosz’s report cannot be presented to the jury, then explained at length why he NPS a second chance with a new royalty analysis, or a “second bite at the apple.”
     “Over the course of many years and more than a dozen patent trials, the undersigned judge has concluded that giving a second bite simply encourages overreaching on the first bite (by both sides). A second bite may be appropriate where the expert report can be salvaged with minimal disruption to an orderly trial, but where the report is not even close, there is a positive need to deny a second bite in order to encourage candor in the first place,” Alsup wrote.
     “To this must be added the fact that the trial date is only four days away and the parties and the court have built their calendars around that date. To start over with a new royalty analysis would impose prejudice on the defense as well and disrupt the court’s calendar, which is burdened with other trials set far into the future. Possibly, plaintiff can cobble together a royalty case based on other disclosed witnesses and evidence. Possibly not. If not, it is a problem clearly of plaintiff’s own overreaching and it will not be allowed a second bite at the apple.”
     Alsup found testimony from another expert witness for NPS, Dr. Angelos Keromytis, can be admitted.
     Fortinet objected to his infringement report for several reasons, including his conclusion all versions of its operating system code infringes all elements of NPS’ patent.
     “Fortinet objects that ‘NPS cannot credibly assert that all FortiOS versions operate in the same manner’ in light of admissions that FortiOS has also changed over time. Fortinet’s logic on this point is flawed,” Alsup wrote. “It does not necessarily follow from these admissions that the FortiOS products changed in a manner relevant to the patent claims at issue.”
     Alsup pointed to a prior hearing during which he asked Fortinet’s attorneys to give an example of how an earlier version of its operating system operates differently regarding the patent claim. “Fortinet counsel skillfully changed the subject and never answered the question,” he said.
     He added, “While the items advanced by NPS seem general and conclusory, it is exceedingly difficult in the haze and maze of this technology to say, as a matter of law, that NPS has not supplied enough evidence to persuade a jury that all of the operating versions worked like FortiOS 4.0 MR2 insofar as claim limitations are concerned.”

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