Motions to disqualify experts under Daubert come up frequently in patent cases. After all, expert work can be difficult and prone to error, and scoring the disqualification of another parties' expert can be a huge blow (although sometimes it has less of an impact than the moving party may expect).
Judges in Delaware often hold oral argument on Daubert motions, typically at the same time as they hear case dispositive motions. But it's uncommon for the Court to hear testimony directly from an expert at a Daubert hearing.
That's exactly what Judge Andrews ordered last week in Sprint Communications Co. v. Cequel Communications, LLC, C.A. No. 18-1752-RGA (D. Del.), however. There, Judge Andrews suggested that it would be improper for an expert to base an apportionment argument on the idea that a feature is responsible for the entire value of a product if that product wouldn't sell without that feature:
[The expert] Dr. Mangum's theory appears to be that although there are cost savings associated with unpatented features . . . , the patented features have a complimentary relationship with the unpatented features such that the unpatented features would not be sold without the patented features. . . . The difficulty with Dr. Mangum's analysis is that apportionment is not dependent on "economic sense." In many multi-component products, there are numerous parts that are necessary for the product to be useful and therefore worth something. No one would sell the product without its numerous necessary parts. But it does not follow that the value of each necessary part is the same as the value of the whole. And yet that is what it appears that Dr. Mangum is doing.
But Judge Andrews noted some uncertainty as to what the expert was actually doing, and ordered a hearing to hear directly from him:
I do not see that Dr. Mangum apportioned for any of this. But I could be wrong about that. The briefing on this issue (as with many of the other issues in this case) is not very helpful because the parties raise a plethora of issues and then address them in a fairly conclusory fashion. Thus, while I am going to deny the Daubert motion on Dr. Mangum's apportionment in the reasonable royalty opinion, I am going to hold a hearing at which Dr. Mangum can testify and be cross-examined. I will then permit a further motion and briefing sufficient to permit me to render an informed decision on this issue.
From the docket, it looks like the case may not have a trial date set, so there should be time for a hearing and then another round of briefing. But a hearing with expert testimony and a new motion and brief will require a not-insignificant amount of resources, and I imagine the parties are wishing they had instead put just a bit more detail into the original briefing.
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