Summary
This per curiam order from the United States Court of Appeals for the Federal Circuit addresses the scope of an en banc rehearing granted in the appeal between EcoFactor, Inc. and Google LLC. The court limits the rehearing strictly to whether the district court properly applied Federal Rule of Evidence 702 and the Daubert standard when admitting damages expert testimony regarding per-unit royalty rates. Consequently, the court directs EcoFactor not to address arguments raised by Google that fall outside this narrow scope. The order was issued on December 4, 2024.
Topics
Practice areas
Questions Presented
- Whether Google's argument at pages 41–58 of its brief fell within the limited scope of the en banc rehearing.
- Whether EcoFactor was required to address that argument in its response brief.
Holdings
- Google's argument at pages 41–58 of its brief exceeded the scope of the en banc rehearing, which was limited to the district court's adherence to Federal Rule of Evidence 702 and Daubert in allowing EcoFactor's damages-expert testimony.
- EcoFactor was not required to address Google's out-of-scope argument in its response brief.
Key quotations
“The court granted rehearing en banc “limited to addressing the district court’s adherence to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in its allowance of testimony from EcoFactor’s damages expert assigning a per-unit royalty rate to the three licenses in evidence in this case.”” (2)
“Google’s argument at pages 41–58 of its brief exceeds the scope of the court’s en banc rehearing, as its footnote 11 all but recognizes.” (2)
Factual background
The underlying dispute involved testimony from EcoFactor's damages expert concerning assignment of a per-unit royalty rate to three licenses in evidence. The Federal Circuit's en banc rehearing was limited to whether the district court adhered to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. in allowing that testimony.
Procedural history
The appeal arose from an action in the Western District of Texas, docketed as No. 6:20-cv-00075-ADA before Judge Alan D. Albright. On rehearing en banc, the Federal Circuit issued this per curiam order addressing the scope of the rehearing and briefing.