Patra on Daubert and Indian SEP Litigation

At the outset of this post, I’ll note that Dennis Crouch published another very interesting post today on the pending EcoFactor en banc, in which he notes that the Federal Circuit on December 4 issued an order which states:

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.” 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. EcoFactor should not address this argument in its response brief.

Pages 41-58 address apportionment, so apparently that topic is off-limits.  Obviously it’s up to the court to decide the appropriate scope of the en banc, but still it might be helpful at some point if the court could devote some further attention to apportionment.  Anyway, I note this here as a segue to a recent article by Soumya Prakash Patra titled Applicability of the Daubert Standard to Indian SEP Litigation:  Analysing the Lava v Ericsson Case, 47 EIPR 55 (2025).  Here is the abstract:

This article demonstrates the potential benefits of using the Daubert standard in Indian Standard Essential Patent litigation. While the situation with SEP litigation and the quality of evaluation of expert witness testimonies is relatively undeveloped in the country, following the Daubert standard is likely to bring several improvements. The Daubert standard is a principle set by the US Supreme Court that provides rules by which experts’ testimonies may be evaluated. Following Daubert–like principles would improve the situation in India, as more specific and standardized criteria would be involved in assessing the reliability of expert testimonies.

The article discusses the use of expert economic and technical evidence in Lava v. Ericsson, a case I blogged about here, in which the Delhi High Court awarded Ericsson a global FRAND royalty, covering a portfolio of FRAND-committed SEPs for the period 2011-20, plus costs, totaling approximately USD $30 million.  Professor Patra states that under current law Indian judges have considerable discretion in deciding what evidence is admissible, and suggests that departing from this “flexible, context-based reception of expert testimony” would meet resistance; but that, nonetheless, more rigorous scrutiny of whether expert testimony is scientifically valid would improve decisionmaking, as would better training for judges “in examining complex technical and economic evidence.”  The author also briefly discusses the use of expert testimony in EU and Chinese SEP cases.  

Of course, as the introduction to this post indicates, it almost goes without saying that simply having something like a Daubert standard in place leaves open many important questions about how to apply it, so that parties have a fair opportunity to present their cases but unreliable evidence is excluded from consideration.