Defense patent damages expert
Expert class library · Intellectual property · Defense side
Rebuts the patentee's damages claim by challenging the royalty base, the comparability of licenses, and the absence of non-infringing alternatives. Offers a lower royalty grounded in apportionment, real-world licenses, and the cost of designing around the patent.
What this expert is retained to answer
- Were acceptable non-infringing alternatives available at the time of the hypothetical negotiation, and what would switching to them have cost?
- Are the licenses relied on technologically and economically comparable to the patent in suit?
- Did the patentee's expert show that the infringer would have made no sales absent infringement, or merely assume it?
- How much of the accused product's value is attributable to the patented feature rather than unpatented features?
Methods
- Non-infringing alternative analysis
- Design-around cost estimation
- License comparability critique
- Apportionment critique
How the testimony is attacked
- Reliance on litigation settlement licenses. Patentees argue that settlement licenses are tainted by litigation and not comparable. In ART+COM v. Google and Zimmer Surgical v. Stryker the courts barred the defense experts from relying on settlement licenses because they did not analyze the underlying litigation or other economic differences.
- Non-infringing alternative never built or tested. Patentees argue an alternative is speculative if no one implemented it. The ART+COM court held that testing is one factor but not a requirement and admitted the defense opinions on a single-server alternative.
- Reliance on the defendant's own employees. Patentees attack cost and availability figures drawn from conversations with the accused infringer's engineers or executives. Courts in Kraft v. TC Heartland and ART+COM held such reliance permissible when those witnesses were deposed and will testify, leaving the dispute to cross-examination.
- No affirmative market analysis of its own. Patentees argue that a rebuttal expert who criticizes their market analysis must offer one of his own. The Kraft court rejected this, because the patentee bears the burden on lost profits and a rebuttal expert may simply critique it.
- Errors in royalty calculations or spreadsheets. Patentees point to calculation mistakes or flawed spreadsheets in the rebuttal. The Kraft court treated alleged spreadsheet and calculation errors as matters of weight, and the Zimmer court treated a wrong damages start date as an accounting fix rather than a ground for exclusion.
What the public record shows
A deliberately narrow CourtListener search, "non-infringing alternative" AND royalty AND patent AND (Daubert OR "Rule 702"), returned 18 opinions filed since 2015, as of October 2, 2026; broader searches return more. Three that show how courts handle this class of testimony:
| Outcome | Case | Court | Why |
|---|---|---|---|
| Limited | ART+COM Innovationpool GmbH v. Google Inc.155 F. Supp. 3d 489 | D. Del. 2016 | The court barred the defendant's damages expert from using five settlement licenses as a check on his royalty because he never analyzed the underlying litigation, but admitted his reliance on two arm's-length licenses and his non-infringing alternative opinion. |
| Admitted | Kraft Foods Group Brands LLC v. TC Heartland, LLC232 F. Supp. 3d 632 | D. Del. 2017 | The court denied the motion to exclude the defendant's damages expert, holding that his reliance on deposed company employees for the availability and cost of a non-infringing alternative, and his critique of the patentee's lost profits analysis, went to weight. |
| Limited | Zimmer Surgical, Inc. v. Stryker Corp.365 F. Supp. 3d 466 | D. Del. 2019 | The court precluded the defendant's damages expert from relying on an older multi-patent settlement license because he did not show its technological or economic comparability, but declined to exclude his damages analysis over an incorrect start date. |
Each case links to the free opinion text on CourtListener.
Under amended Rule 702
Since December 1, 2023, Rule 702 says expressly that the party offering an expert must show the court it is more likely than not that the testimony meets each requirement: that it rests on sufficient facts or data, uses reliable methods, and reflects a reliable application of those methods to the case. Questions about the basis of an opinion are no longer automatically matters of weight for the jury. For how the circuits have applied the amendment, see the Rule 702 tracker, which follows each court of appeals; for what that means for preparing or attacking this class of expert, see the guide on amended Rule 702.
Related classes
- Patent reasonable-royalty damages expert
- Patent lost-profits damages expert
- Technical patent infringement expert
Guides
Simulating this class on a matter
Supreme Mind simulates a class of expert, never a named individual, on your fact pattern and returns the likely opinion, the ranked cross-examination weaknesses, the Rule 702 attack surface and what it means for settlement. Read how it works, or book a demo.
Last reviewed October 2, 2026. How this page is built: rulings are found by searching court opinions on CourtListener, and each one is read in the opinion before it is summarised here; outcomes are labelled by what the court did with the expert's testimony. No individual expert is named. This page summarises public decisions for orientation and is not legal advice; read the opinion before relying on any ruling.