Case 2:14-cv-00111-AJS Document 228 Filed 03/24/15 Page 1 of 3
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
`DRONE TECHNOLOGIES, INC.,
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`Plaintiff,
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`14cv0111
`ELECTRONICALLY FILED
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`v.
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`PARROT S.A., PARROT, INC.,
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`Defendants.
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`MEMORANDUM ORDER OF COURT RE: DEFENDANTS’ MOTION FOR PARTIAL
`SUMMARY JUDGMENT (DOC. NO. 210)
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`I. Introduction
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`Default judgment has been entered against Defendants as to liability and the amount of
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`damages, if any, is the sole remaining issue for the jury in the upcoming damages trial. See Doc.
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`Nos. 107, 126, 127. Presently before this Court is a Motion for Summary Judgment, in which
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`Defendants move this Court to enter an Order finding that Plaintiff has failed to demonstrate
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`material facts supporting an award of damages, and therefore, Plaintiff is not entitled to an award
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`of damages. Doc. No. 210. Plaintiff wholly opposes Defendants’ requested relief. Doc. Nos.
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`213 and 214.
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`The matter is ripe for disposition. Doc. Nos. 210-215, 224. Defendants’ Motion for
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`Partial Summary Judgment (Doc. No. 210) will be DENIED for the following reasons.
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`II. Discussion
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`The sole issue remaining for the upcoming jury trial is the amount of damages, based
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`upon a reasonable royalty. Doc. No. 224, 2. Plaintiff bears the burden of proof in this regard.
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`35 U.S.C. § 284; Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1324 (Fed. Cir. 2009);
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`Devex Corp. v. General Motors Corp., 667 F.2d 347, 361 (1981).
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`Case 2:14-cv-00111-AJS Document 228 Filed 03/24/15 Page 2 of 3
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`Defendants move this Court to enter partial summary judgment in their favor pursuant to
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`Federal Rule of Civil Procedure 56. The Court shall grant summary judgment if, drawing all
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`inferences in the light most favorable to the non-moving party, “the movant shows that there is
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`no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
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`law.” Fed. R. Civ. P. 56(a).
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`Defendants’ Motion is premised on Plaintiff’s alleged lack of evidentiary support for its
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`damages claim based upon indirect infringement. 35 U.S.C. § 271(b) and (c). Specifically,
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`Defendants posit that a royalty base must be calculated on a specific number of instances of
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`direct infringement, which Plaintiff allegedly cannot demonstrate, because there is no evidence
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`of: (1) the number of users of Parrot Drones; (2) the smartphones or tablet used by user(s) with
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`Parrot Drones; and (3) the extent to which any of these smartphones or tablets are used to operate
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`Parrot Drones. Defendants also note that these categories of information are not included in the
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`expert report provided by Plaintiff.
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`Plaintiff notes a 2009 case from the United States Court of Appeals for the Federal
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`Circuit to rebut Defendants’ claim that Plaintiff must demonstrate specific instances of
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`infringement to be entitled to a reasonable royalty damages award. Lucent Techs., Inc., 580 F.3d
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`at 1334 (“On the other hand, we have never laid down any rigid requirement that damages in all
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`circumstances be limited to specific instances of infringement proven with direct evidence.”).
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`After a review of the documentary record, there is sufficient evidence to support
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`Plaintiff’s damages claims to preclude the entry of summary judgment. Plaintiff’s expert, Ned S.
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`Barnes, CPA, authored a 44 page report, which provides his estimate as to a damages amount
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`based upon a reasonable royalty, employing the Georgia-Pacific factors and available facts and
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`information. Doc. No. 187. This report, and anticipated testimony, which is not “conspicuously
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`Case 2:14-cv-00111-AJS Document 228 Filed 03/24/15 Page 3 of 3
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`devoid of any data,” is sufficient to allow a jury to assess a reasonable royalty damages award.
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`Further, genuine issues of material fact exist that could influence a jury’s determination of
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`damages, including the credibility of the Parties’ experts. Defendants’ arguments as to
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`Plaintiff’s “false” and “incorrect” positions demonstrate that an entry of summary judgment is
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`not proper; these arguments are more appropriate for cross-examination of witnesses during trial.
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`The procedural posture of this case continues to illustrate the combative and deeply
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`entrenched dispute between the Parties, wherein the Court has been repeatedly compelled to
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`referee otherwise basic matters. The determination of damages is the last remaining issue in this
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`unprecedented case and will be given to the jury in the Court’s continued effort to effect the just,
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`speedy, and inexpensive determination of this litigation.
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`III. Conclusion/Order
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`AND NOW, this 24th day of March, 2015, IT IS HEREBY ORDERED THAT
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`Defendants’ Motion for Summary Judgment (Doc. No. 210) is DENIED.
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`The case will proceed to jury trial, beginning on April 27, 2015, according to the
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`previously ordered schedule. Doc. Nos. 126 and 127.
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`s/ Arthur J. Schwab
`Arthur J. Schwab
`United States District Judge
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`cc:
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`All Registered ECF Counsel and Parties
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