Cotter on the Apple v. Motorola Case

I have a new essay up on ssrn, titled Apple v. Motorola: Admissibility of expert testimony on royalties; injunctive relief, in Leading FRAND Cases (Jorge L. Contreras ed., Edward Elgar Press, forthcoming).  Here is a link, and here is the abstract:

In Apple v. Motorola, 757 F.3d 1286 (Fed. Cir. 2014), the U.S. Court of Appeals for the Federal Circuit for the first time addressed the propriety of injunctive relief for the infringement of FRAND-committed SEPs.  The court also addressed issues concerning the admissibility of expert testimony on FRAND royalties and reasonable royalties.  Its resolution of both sets of issues, on the facts presented, nevertheless left open several questions that U.S. courts either are still in the process of working through, or have yet to directly confront.

At the end of the essay, I note that in Apple v. Motorola the Federal Circuit reaffirmed that district judges are gatekeepers, while also indicating the judges should not be unduly strict in excluding expert testimony; but that where the line should be drawn between what is appropriately and unduly strict remains a work in progress, as reflected in the court’s recent decision to rehear EcoFactor v. Google en banc (for previous discussion on this blog, see here and here).  As Dennis Crouch recently noted, Google’s brief is now in, and amicus briefs on behalf of Google are due in a couple of weeks.