Expert’s 50/50 Profit Split for Determining Royalty Rate Does Not Warrant Directed Verdict on Damages

The court denied defendant's motion for a directed verdict on damages for plaintiff's reliance on a theory similar to the 25% rule of thumb. "[Defendant] sought a directed verdict on damages, arguing [plaintiff's damages expert] had used a 50/50 split of profits attributable to the licensed feature, akin to a prohibited 25% rule of thumb. This does a substantial disservice to the nuanced nature of [the expert's] testimony. . . . [Plaintiff] presented credible testimony from its managing director . . . as the person responsible for negotiating a license with [defendant], that a 50/50 split would have been reasonable. . . . [U]nlike cases in which the Federal Circuit has rejected expert testimony, this was not [the expert's] starting point, nor even central point in arriving at a reasonable royalty opinion in this case. It was just one of many pieces of evidence that [she] relied upon in coming up with her own royalty rate."

Wisconsin Alumni Research Foundation v. Apple Inc., 3-14-cv-00062 (WIWD October 26, 2015, Order) (Conley, J.)