Case 2:13-cv-00213-JRG Document 350 Filed 01/29/16 Page 1 of 19 PageID #: 12446
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CASE NO. 2:13-cv-213-JRG
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`§§§§§§§§§§§§
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`REMBRANDT WIRELESS
`TECHNOLOGIES, LP,
`
`Plaintiff,
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD.,
`SAMSUNG ELECTRONICS AMERICA,
`INC., AND SAMSUNG AUSTIN
`SEMICONDUCTOR, LLC,
`
` Defendants.
`
`MEMORANDUM OPINION AND ORDER
`
`Before the Court is Samsung Defendants’ (“Samsung”) Rule 50(b) Renewed Motion for
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`Judgment as a Matter of Law and/or Rule 59(a) Motion for New Trial on Damages Issues
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`(“Mot.”, Dkt. No. 328). The Court heard argument on November 3, 2015. For the reasons set
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`forth below, Samsung’s Rule 50(b) Renewed Motion for Judgment as a Matter of Law and/or
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`Rule 59(a) Motion for New Trial on Damages Issues is DENIED1.
`
`I.
`
`BACKGROUND
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`The Court held a jury trial in this case, and the jury entered a verdict on February 13,
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`2015. The asserted claims of U.S. Patent No. 8,023,580 (“the ’580 Patent”) and U.S. Patent No.
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`8,457,228 (“the ’228 Patent”), the two patents-in-suit, involve a system in which devices can
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`communicate with each other on the same network using different modulation methods. The jury
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`returned a verdict that the asserted claims were infringed and not invalid, and it awarded $15.7
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`1 The Court notes that Samsung has also filed a Motion for Judgment as a Matter of Law and/or Rule 59(a)Motion
`for a New Trial on Liability Issues such is still pending before this Court (Dkt. No. 329).
`1
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`Case 2:13-cv-00213-JRG Document 350 Filed 01/29/16 Page 2 of 19 PageID #: 12447
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`million in damages2 to Plaintiff Rembrandt Wireless Technologies, LP (“Rembrandt”).
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`(“Verdict”, Dkt. No. 288.) Samsung now asserts that the jury did not have sufficient evidence for
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`its findings.
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`Samsung offers two main arguments in support of its contention that Rembrandt did not
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`present sufficient evidence to support the jury’s damages award. First, Samsung argues that Mr.
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`Roy Weinstein, Rembrandt’s damages expert, analyzed the prices of chips unrelated to the
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`accused Samsung products, improperly isolated chip price data, and failed to correctly apportion
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`between patented and unpatented features of the Bluetooth technology at issue in this case.
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`Second, Samsung argues that Mr. Weinstein relied on a license agreement provision that
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`Rembrandt unilaterally created for litigation purposes. Additionally, Samsung alleges that the
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`jury simply reached a compromise verdict.
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`In the alternative, Samsung contends that it is entitled to a new trial on damages because
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`the Court made multiple erroneous evidentiary rulings. Having considered the parties’ briefing,
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`arguments, and the entire record, the Court is persuaded that Rembrandt introduced substantial
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`evidence that is more than adequate to support the jury’s damages verdict. The Court also
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`concludes that Samsung is not entitled to a new trial on the issue of damages.
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`II.
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`LEGAL STANDARD
`
`A.
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`Applicable Law Regarding FRCP 50
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`Upon a party’s renewed motion for judgment as a matter of law following a jury verdict,
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`the Court should properly ask whether “the state of proof is such that reasonable and impartial
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`minds could reach the conclusion the jury expressed in its verdict.” FRCP 50(b); see also Am.
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`Home Assur. Co. v. United Space Alliance, 378 F.3d 482, 487 (5th Cir. 2004). “The grant or
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`2 Samsung asserted at trial that, if damages were awarded, the proper amount of damages should not exceed
`$500,000.
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`2
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`Case 2:13-cv-00213-JRG Document 350 Filed 01/29/16 Page 3 of 19 PageID #: 12448
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`denial of a motion for judgment as a matter of law is a procedural issue not unique to patent law,
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`reviewed under the law of the regional circuit in which the appeal from the district court would
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`usually lie.” Finisar Corp. v. DirectTV Group, Inc., 523 F.3d 1323, 1332 (Fed. Cir. 2008). “A
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`JMOL may only be granted when, ‘viewing the evidence in the light most favorable to the
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`verdict, the evidence points so strongly and overwhelmingly in favor of one party that the court
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`believes that reasonable jurors could not arrive at any contrary conclusion.’” Versata Software,
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`Inc. v. SAP Am., Inc., 717 F.3d 1255, 1261 (Fed. Cir. 2013) (quoting Dresser-Rand Co. v. Virtual
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`Automation, Inc., 361 F.3d 831, 838 (5th Cir. 2004)).
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`Under Fifth Circuit law, a court is to be “especially deferential” to a jury’s verdict, and
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`must not reverse the jury’s findings unless they are not supported by substantial evidence.
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`Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 499 (5th Cir. 2012). “Substantial evidence is
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`defined as evidence of such quality and weight that reasonable and fair-minded men in the
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`exercise of impartial judgment might reach different conclusions.” Threlkeld v. Total Petroleum,
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`Inc., 211 F.3d 887, 891 (5th Cir. 2000). A motion for judgment as a matter of law must be denied
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`“unless the facts and inferences point so strongly and overwhelmingly in the movant’s favor that
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`reasonable jurors could not reach a contrary conclusion.” Baisden, 693 F.3d at 498 (citation
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`omitted). However, “[t]here must be more than a mere scintilla of evidence in the record to
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`prevent judgment as a matter of law in favor of the movant.” Arismendez v. Nightingale Home
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`Health Care, Inc., 493 F.3d 602, 606 (5th Cir. 2007).
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`In evaluating a motion for judgment as a matter of law, a court must “draw all reasonable
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`inferences in the light most favorable to the verdict and cannot substitute other inferences that
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`[the court] might regard as more reasonable.” E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731 F.3d
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`444, 451 (5th Cir. 2013) (citation omitted). However, “[c]redibility determinations, the weighing
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`3
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`Case 2:13-cv-00213-JRG Document 350 Filed 01/29/16 Page 4 of 19 PageID #: 12449
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`of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not
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`those of a judge.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). “[T]he
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`court should give credence to the evidence favoring the nonmovant as well as that ‘evidence
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`supporting the moving party that is uncontradicted and unimpeached, at least to the extent that
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`that evidence comes from disinterested witnesses.’” Id. at 151 (citation omitted).
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`B.
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`
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`Applicable Law Regarding FRCP 59
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`Under FRCP 59(a), a new trial can be granted to any party after a jury trial on any or all
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`issues “for any reason for which a new trial has heretofore been granted in an action at law in
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`federal court.” FRCP 59(a). In considering a motion for a new trial, the Federal Circuit applies
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`the law of the regional circuit. z4 Techs., Inc. v. Microsoft Corp., 507 F.3d 1340, 1347 (Fed. Cir.
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`2007). “A new trial may be granted, for example, if the district court finds the verdict is against
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`the weight of the evidence, the damages awarded are excessive, the trial was unfair, or
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`prejudicial error was committed in its course.” Smith v. Transworld Drilling Co., 773 F.2d 610,
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`612–13 (5th Cir. 1985). “The decision to grant or deny a motion for a new trial is within the
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`discretion of the trial court and will not be disturbed absent an abuse of discretion or a
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`misapprehension of the law.” Prytania Park Hotel, Ltd. v. General Star Indem. Co., 179 F.3d
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`169, 173 (5th Cir. 1999).
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`C.
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`Applicable Law Regarding Damages
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`
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`Upon a showing of infringement, a patentee is entitled to an award of damages “adequate
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`to compensate for the infringement, but in no event less than a reasonable royalty for the use
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`made of the invention by the infringer, together with interest and costs as fixed by the court.” 35
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`U.S.C. § 284. However, “[t]he burden of proving damages falls on the patentee.” Lucent Techs.,
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`Inc. v. Gateway, Inc., 580 F.3d 1301, 1324 (Fed. Cir. 2009). There are two alternative categories
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`4
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`Case 2:13-cv-00213-JRG Document 350 Filed 01/29/16 Page 5 of 19 PageID #: 12450
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`of damages typically recovered in a patent case: the patentee’s lost profits or the “reasonable
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`royalty [the patentee] would have received through arms-length bargaining.” Id. In this case,
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`Rembrandt sought a reasonable royalty.
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`To determine an appropriate reasonable royalty, patentees (and courts) commonly
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`employ the hypothetical negotiation, or “willing licensor-willing licensee” model. Id. at 1324–
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`25. The hypothetical negotiation “attempts to ascertain the royalty upon which the parties would
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`have agreed had they successfully negotiated an agreement just before infringement began” with
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`the assumption that the patent is valid, enforceable, and infringed. Id.; see also Georgia-Pacific
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`Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970); Rite-Hite Corp. v.
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`Kelley Co., 56 F.3d 1538, 1554 n.13 (Fed. Cir. 1995) (en banc).
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`Such a reasonable royalty analysis “necessarily involves an element of approximation
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`and uncertainty.” Unisplay, S.A. v. Am. Elec. Sign Co., 69 F.3d 512, 517 (Fed. Cir. 1995).
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`However, the Court must ensure that a jury’s damages award is supported by substantial
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`evidence. Id. Generally, the Court should uphold a jury’s damages award “unless ‘grossly
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`excessive or monstrous,’ clearly not supported by the evidence, or based only on speculation or
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`guesswork.” Energy Transp. Group, Inc. v. William Demant Holding A/S, 697 F.3d 1342, 1356
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`(Fed. Cir. 2012).
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`III. ANALYSIS
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`
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`At trial, Rembrandt based its damages analysis on the value of Enhanced Data Rate
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`(“EDR”) functionality in Bluetooth devices3 and presented its damages theory through the
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`testimony of Mr. Weinstein. Mr. Weinstein compared the prices of two Texas Instruments (“TI”)
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`3 Rembrandt asserted that the patented technology at issue consists of “embedded modulations,” and “[w]ithout
`embedded modulation, [EDR] does not work.” (2/9/2015 P.M. Trial Tr., Dkt. No. 290 at 37, 43.) Rembrandt further
`stated that “the evidence will be that Samsung cannot make a Bluetooth EDR device without infringing [the patents-
`in-suit]. Why? Because embedded modulation is the heart of enhanced data rate.” (Id. at 178.)
`5
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`

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`Case 2:13-cv-00213-JRG Document 350 Filed 01/29/16 Page 6 of 19 PageID #: 12451
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`chips over two fiscal quarters: one chip included EDR functionality, and the other did not.
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`(2/10/2015 P.M. (Sealed) Trial Tr., Dkt. No. 294 at 3:16–18, 4:14–17.) He used such cost
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`comparison to identify the incremental value associated with implementing the EDR
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`functionality to fall between 8.5 and 18.9 percent. (Id. at 6:24–7:16.) Mr. Weinstein then took
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`this percentage difference in the price of the TI chips and applied it to the price of chips that
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`Samsung actually purchased for its devices. (Id. at 9:20–23.) Employing this formula, Mr.
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`Weinstein arrived at a royalty rate of between 5 and 11 cents per device. (Id. at 11:24–12:5.) Mr.
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`Weinstein’s final step was to apply his royalty rate calculations to the total number of accused
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`Samsung sales during the damages period. (2/10/2015 P.M. Trial Tr., Dkt. No. 293 at 133:21–
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`24.) Specifically, he multiplied the 5-cent and 11-cent royalty rates by 290 million devices to
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`arrive at a range of $14.5 to $31.9 million in total damages. (Id. at 134:8–11.)
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`
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`Additionally, Mr. Weinstein incorporated a license agreement between Rembrandt and
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`BlackBerry covering the patents-in-suit (“BlackBerry-Rembrandt Agreement”) to confirm his
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`damages analysis. (2/10/2015 P.M. (Sealed) Trial Tr., Dkt. No. 294 at 17:13–15.) Mr. Weinstein
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`assessed the agreement’s structure and determined that, during what he found to be the relevant
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`time period, Rembrandt licensed its patent rights to BlackBerry at a per-unit rate that supported
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`Mr. Weinstein’s ultimate damages conclusions in the present case. (Id. at 19:3–7, 20:20–23.)
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`
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`As discussed above, the jury awarded Rembrandt $15.7 million in damages. Samsung
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`now argues that no reasonable jury could have found Samsung liable for that amount. Moreover,
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`Samsung asserts that it is entitled to a new trial because of allegedly erroneous decisions made
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`by the Court.
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`A.
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`Rembrandt Introduced Sufficient Evidence to Support the Jury’s Damages Award
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`At the outset, the Court notes that many arguments raised in Samsung’s Renewed Motion
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`6
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`Case 2:13-cv-00213-JRG Document 350 Filed 01/29/16 Page 7 of 19 PageID #: 12452
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`for Judgment as a Matter of Law merely re-urge Samsung’s previously-filed Daubert challenges.
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`See, e.g., (Dkt. No. 189.) In Versata, the Federal Circuit found such practice to be improper and
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`rejected the defendant’s JMOL arguments directed toward admissibility of expert testimony.
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`Versata Software Inc. v. SAP America Inc., 717 F.3d 1255, 1264 (Fed. Cir. 2013). The Federal
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`Circuit held that a JMOL is not the appropriate context for renewing attacks on an expert’s
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`methodology:
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`Under the guise of sufficiency of the evidence, [Defendant] questions the
`admissibility of [Plaintiff’s] expert testimony and whether his damages model is
`properly tied to the facts of the case. Such questions should be resolved under the
`framework of the Federal Rules of Evidence and through a challenge under
`Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d
`469 (1993).
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`In the present case, Samsung’s pre-trial Daubert challenge to exclude Mr. Weinstein’s
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`Id.
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`
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`opinions included the following subject matter: the reliability of an allocation provision in the
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`BlackBerry-Rembrandt Agreement; Mr. Weinstein’s analysis of the two TI chips; Mr.
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`Weinstein’s comparison of the cost differences between the TI chips; Mr. Weinstein’s selection
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`of two fiscal quarters from which to evaluate TI chip price data; and Mr. Weinstein’s method of
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`apportionment. (Dkt. No. 189.) The Court denied Samsung’s challenges. (Dkt. No. 265.)
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`Samsung did not move for reconsideration of the Court’s rulings. Instead, similarly to the
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`defendant in Versata, Samsung has repeated these arguments in its current JMOL motion and
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`argued at the post-trial hearing that Mr. Weinstein’s testimony “shouldn’t have been allowed in
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`front of the jury in the first place.” (11/3/2015 Tr., Dkt. No. 349 at 63:8–19.) Samsung has
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`followed the same path that Versata teaches away from, and such disregard for the Federal
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`Circuit’s guidance should not be rewarded or overlooked.
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`Case 2:13-cv-00213-JRG Document 350 Filed 01/29/16 Page 8 of 19 PageID #: 12453
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`Accordingly, to the extent that Samsung now merely re-urges its prior Daubert
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`arguments, the Court rejects such as improper. To the extent, if any, that Samsung does not, the
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`Court will address the merits of Samsung’s current motion below.
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`1. Rembrandt’s TI Chip Price Analysis
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`Samsung argues that no reasonable jury could rely on Rembrandt’s TI chip price analysis
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`because Mr. Weinstein’s comparison of the two chips was “irrelevant and unreliable.” (Mot. at
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`3.) Samsung first asserts that none of the Samsung products at issue in this case used the TI chips
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`that Mr. Weinstein evaluated, and that, in fact, a price comparison of the chips that Samsung
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`does use would demonstrate that EDR has zero incremental value. (Id. at 3–4.) Samsung further
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`challenges Mr. Weinstein’s selection of two fiscal quarters of TI price data to use as the basis for
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`his price comparison. (Id. at 4.) Samsung notes that “[o]ver a period of 20 quarters, the two
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`quarters selected by Mr. Weinstein were two of only four quarters in which the TI chip with
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`EDR was more expensive than the TI chip without EDR” and alleges that Mr. Weinstein failed
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`to account for a massive volume difference in the quantity of EDR and non-EDR chips sold
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`during those quarters. (Id.)
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`
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`Samsung also argues that Mr. Weinstein’s methodology failed to correctly apportion
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`between the patented and unpatented features of the TI Bluetooth chips. (Id. at 5.) Specifically,
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`Samsung contends that Mr. Weinstein improperly attributed the entire price difference between
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`the two TI chips to EDR functionality, overlooking various other reasons for differences in price.
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`(Id.) Finally, Samsung asserts that Mr. Weinstein should have considered the incremental profit
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`associated with including EDR functionality rather than simply the incremental cost of
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`incorporating it. (Id. at 6.)
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`8
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`Case 2:13-cv-00213-JRG Document 350 Filed 01/29/16 Page 9 of 19 PageID #: 12454
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`Rembrandt responds by arguing that “the Jury was entitled to rely on unrebutted
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`testimony that the [TI] chips . . . provided the best comparison for isolating the patented
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`technology.” (“Resp.”, Dkt. No. 336 at 1.) Rembrandt notes that, while Samsung heavily
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`criticized the TI chips at trial, it failed to present alternative evidence that another pair of chips
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`could provide a better comparison. (Id. at 5.)
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`
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`Significantly, Rembrandt asserts that Mr. Weinstein properly relied upon the conclusion
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`of Rembrandt’s technical experts, Dr. Robert Morrow and Dr. Chris Jones, that the principal
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`difference between the TI chips was the introduction of EDR functionality. (Id. at 6.) At trial,
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`Mr. Weinstein testified as follows:
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`QUESTION: How did you determine which chips to compare?
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`
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`ANSWER: I relied on the technical experts, Dr. Morrow and Dr. Jones. [. . .] I
`wanted . . . the best two chips that they could identify where we would have this
`information where essentially the only difference between the two was the
`inclusion of EDR functionality. And after discussing this with them and looking
`at documents, they said that these are the two chips where essentially the only
`difference is the inclusion of EDR functionality in one.
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`(2/10/2015 P.M. Trial Tr. (Weinstein), Dkt. No. 293 at 131:2–4, 14–21.) Rembrandt also argues
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`that it provided sufficient evidence for the jury to conclude that the two quarters Mr. Weinstein
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`relied on for TI chip price data were the two most relevant quarters for his analysis, and any
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`volume differences between the two chips did not impact price. (Resp. at 6–7.) Specifically, Mr.
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`Weinstein testified at trial that a comparison of the third and fourth quarters of 2006 provided the
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`best comparison for evaluating an increase in chip price due to the introduction in EDR:
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`to Texas
`two quarters because according
`those
`I picked
`ANSWER:
`Instruments . . . those are the first times that the [TI chip] with EDR was actually
`offered in what they call production level quantities, sufficient quantities—
`quantities to be meaningful.
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`…
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`9
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`Case 2:13-cv-00213-JRG Document 350 Filed 01/29/16 Page 10 of 19 PageID #: 12455
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`QUESTION: Okay. Now, why didn’t you use pricing for these TI chips in 2011,
`2012, 2013? Why did you focus on when the product was first introduced in
`production volumes?
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`ANSWER: Well, if I were to try and do this later on . . . there would have been a
`lot of other changes going on in the chips. And so it would not have been possible
`to separate out or apportion out for all of those other changes. It was only by
`looking at these chips when they were first introduced at production level
`quantities that I was able to specifically identify the incremental contribution
`associated with including EDR.
`
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`(2/10/2015 P.M. (Sealed) Trial Tr. (Weinstein), Dkt. No. 294 at 7:3–9, 8:8–19.)
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`
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`Additionally, Rembrandt argues that Mr. Weinstein properly apportioned the value of the
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`patented features by identifying the smallest saleable unit (the Bluetooth chip) and then further
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`isolating only the incremental value of EDR. (Resp. at 8.) Rembrandt again points to Dr. Morrow
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`and Dr. Jones’ determination that the addition of EDR was the sole meaningful difference
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`between the two TI chips. (Id. at 9.) Lastly, Rembrandt contends that Mr. Weinstein’s testimony
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`provided a sufficient basis for reasonable jurors to conclude that, in a hypothetical negotiation,
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`Samsung would have been willing to pay Rembrandt the incremental cost of implementing the
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`EDR functionality. (Id. at 10.)
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`
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`The Court is not persuaded by Samsung’s post-verdict attack on Rembrandt’s damages
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`theory. Challenges to methodology and reliability fall squarely into the purview of Daubert.
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`Even if the Court ignores this glaring problem with Samsung’s argument, it is clear that Mr.
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`Weinstein was entitled to rely upon the technical analysis and conclusions of Dr. Morrow and
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`Dr. Jones that the TI chips provided the best benchmark when constructing his damages model
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`and presenting it to the jury. This remains true even if Samsung may not have used the two TI
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`chips in its products at issue. See Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1321 (Fed. Cir.
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`2014) (partly overruled on other grounds) (“Experts routinely rely upon other experts hired by
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`the party they represent for expertise outside of their field.”). Moreover, Mr. Weinstein
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`Case 2:13-cv-00213-JRG Document 350 Filed 01/29/16 Page 11 of 19 PageID #: 12456
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`thoroughly explained the reasoning behind his election to use data from two fiscal quarters as the
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`foundation for his chip price comparison. Samsung clearly disagreed with his reasoning and, in
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`response, vigorously cross-examined Mr. Weinstein on these matters and presented rebuttal
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`testimony to the jury from its own damages expert. The jury was free to judge the credibility of
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`all of the experts and determine who had persuaded them when awarding damages. Kinetic
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`Concepts, Inc. v. Smith & Nephew, Inc., 688 F.3d 1342, 1262 (Fed. Cir. 2012) (citation omitted).
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`The Court concludes that Rembrandt’s TI chip price analysis was appropriately tied to the facts
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`of the case and supports the jury’s verdict.
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`Further, the Court does not find that Mr. Weinstein failed to properly apportion between
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`the patented and unpatented features of the Bluetooth chips. Mr. Weinstein repeatedly explained
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`how his method of apportionment accounted for non-infringing features. (2/10/2015 P.M.
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`(Sealed) Trial Tr., Dkt. No. 294 at 12:12–14:25.) As noted in the Court’s Order denying
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`Defendants’ Motion to Exclude, “it appears Defendants’ primary dispute with Mr. Weinstein’s
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`report and testimony lies in the underlying technical analysis performed by Dr. Morrow when
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`comparing the [TI] chips—i.e., whether the entire incremental cost difference of the two should
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`be attributed solely to EDR, or if additional benefits should be discounted in the analysis.” (Dkt.
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`No. 243 at 6.) Samsung did not move to exclude Dr. Morrow’s report during pre-trial, and it had
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`(and exercised) the opportunity to thoroughly cross-examine both him and Dr. Jones at trial. The
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`Court concludes that, contrary to Samsung’s arguments, Rembrandt adequately estimated the
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`“portion of the value” of the Bluetooth chips “attributable to the patented technology.” VirnetX,
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`Inc. v. Cisco Sys. Inc., 767 F.3d 1308, 1327 (Fed. Cir. 2014).
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`Finally, the Court does not agree that Mr. Weinstein inappropriately inflated his damages
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`calculations by using the incremental cost of incorporating EDR functionality to determine a
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`11
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`Case 2:13-cv-00213-JRG Document 350 Filed 01/29/16 Page 12 of 19 PageID #: 12457
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`reasonable royalty amount. Mr. Weinstein explained how he used the chip price comparison to
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`isolate the value of the patented technology as well as how he accounted for price changes over
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`time. (2/10/2015 P.M. (Sealed) Trial Tr., Dkt. No. 294 at 11:2–12:5.) The Court does not find
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`that no reasonable jury could have accepted his testimony that Samsung would have agreed to
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`this measure of value in a hypothetical negotiation. Avoiding the double negative, the Court
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`finds that a reasonable jury (and in this case—this jury) could have reasonably accepted Mr.
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`Weinstein’s testimony that Samsung would have agreed to this measure of value in a
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`hypothetical negotiation. See Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201, 1226 (Fed. Cir.
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`2014) (“When the accused infringing products have both patented and unpatented features,
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`measuring this value requires a determination of the value added by such features . . . [t]he
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`essential requirement is that the ultimate reasonable royalty award must be based on the
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`incremental value that the patented invention adds to the end product.”).
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`2. The Allocation Clause in the BlackBerry-Rembrandt Settlement Agreement
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`Samsung also challenges the reliability of an allocation clause in the BlackBerry-
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`Rembrandt Settlement Agreement that Mr. Weinstein used as evidence to support his damages
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`analysis. (Mot. at 7.) Under the BlackBerry-Rembrandt Agreement, BlackBerry agreed to pay
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`Rembrandt a settlement amount for a limited license covering the damages period prior to
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`November 12, 2014, as well as for a five-year standstill period. (Id.) The Agreement includes a
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`provision that allocates the payments Rembrandt received from BlackBerry into three different
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`time periods: (1) sales prior to the date of the lawsuit during the infringement period; (2) sales
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`after the lawsuit was filed until the date of the settlement agreement; and (3) a future five-year
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`standstill agreement. (2/10/2015 P.M. (Sealed) Trial Tr., Dkt. No. 294 at 17:21–18:14.)
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`Immediately following the allocation clause is the following sentence: “BlackBerry does not
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`12
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`Case 2:13-cv-00213-JRG Document 350 Filed 01/29/16 Page 13 of 19 PageID #: 12458
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`agree to an allocation of the payment.” (Mot. at 7.) Notwithstanding this sentence, Mr. Weinstein
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`evaluated the second time period in the allocation clause to derive an effective royalty rate from
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`the BlackBerry-Rembrandt license that supported his ultimate damages conclusions in the
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`present case. (Id. at 19:1–7, 20:20–23.)
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`Samsung argues that the allocation provision “is not a reliable measure of the value of the
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`patents-in-suit” because the Agreement states that BlackBerry did not agree to the provision.
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`(Mot. at 7.) Samsung alleges that the per-unit royalty that Mr. Weinstein derived from the
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`BlackBerry-Rembrandt Agreement was “an arbitrary number chosen by Rembrandt for litigation
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`purposes.” (Id. at 8.) Samsung also contends that Mr. Weinstein provided no basis for
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`considering only the second allocated time period in calculating the per-unit royalty and offered
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`no rationale for converting the Agreement’s lump sum payment into a running royalty. (Id. at 9.)
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`Rembrandt responds by arguing that “BlackBerry implicitly affirmed the allocation by
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`paying the amount that was due using the stated allocation, including increasing the settlement
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`amount consistently with the allocation each day that the negotiations continued.” (Resp. at 11.)
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`Rembrandt notes that BlackBerry did not object to the inclusion of the allocation provision in the
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`Agreement and states that BlackBerry only included the statement at issue to avoid implications
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`in other litigation. (Id.) Further, Rembrandt asserts that the Blackberry-Rembrandt Agreement is
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`the sole license specific to the patents-in-suit, therefore increasing its relevance to the current
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`case. (Id. at 12.) At trial, Mr. Weinstein testified that he relied only upon the second allocated
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`time period because BlackBerry had a live defense related to pre-litigation damages that would
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`have impacted Rembrandt’s ability to collect damages for that first allocated period. (2/10/2015
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`P.M. (Sealed) Trial Tr., Dkt. No. 294 at 20:25–21:5.)
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`Having considered the entire record, the Court disagrees with Samsung. Although
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`Case 2:13-cv-00213-JRG Document 350 Filed 01/29/16 Page 14 of 19 PageID #: 12459
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`differences certainly exist in the structure of the BlackBerry-Rembrandt Agreement and
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`Rembrandt’s reasonable royalty damages model, the Court concludes that a reasonable basis for
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`comparing the two frameworks exists and that Mr. Weinstein’s analysis was relevant to the facts
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`of this case. See Lucent Techs., 580 F.3d at 1330.
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`At trial, Mr. Weinstein explained why he found the allocation provision in the
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`BlackBerry-Rembrandt Agreement to be a reliable source of evidence and how he used that
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`provision to derive a royalty rate supporting his independent damages calculations. (2/10/2015
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`P.M. (Sealed) Trial Tr., Dkt. No. 294 at 19:11–21:5.) Samsung strongly disputed the reliability
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`of the allocation provision through lengthy cross-examination, rebuttal expert testimony and the
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`presentation of alternative license agreements. The jury was entitled to weigh all of the evidence
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`presented at trial and decide which evidence it found to be most relevant and credible. See
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`Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1212 (Fed. Cir. 2010) (citing i4i Ltd.
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`P’ship, Infrastructure for Info. Inc. v. Microsoft Corp., 598 F.3d 831, 856 (Fed. Cir. 2010)).
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`After such evaluation, the jury found for Rembrandt. The Court does not find that no reasonable
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`jury could have relied upon Mr. Weinstein’s per-unit royalty analysis derived from the
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`BlackBerry-Rembrandt Agreement. Where a jury is presented with two conflicting positions at
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`trial and there is reasonable evidence and argument to support both positions, the fact that the
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`jury ultimately sided with one party over the other does not support entry of JMOL. Such is the
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`position in which Samsung finds itself in this case.
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`3. The Jury’s Damages Award
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`Samsung alleges that the jury simply “split the difference” between Rembrandt and
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`Samsung’s competing damages calculations to arrive at an “arbitrary” award. (Mot. at 10–11.)
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`Samsung alleges that Mr. Weinstein provided the jury with no evidence or guidance in selecting
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`Case 2:13-cv-00213-JRG Document 350 Filed 01/29/16 Page 15 of 19 PageID #: 12460
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`an amount within his proposed damages range and that the speed with which the jury returned its
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`verdict implies that the jury rendered a quick compromise decision.4 (Id. at 11.) Samsung asserts
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`that a reasonable jury could not have awarded damages exceeding the $500,000 amount
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`proposed by their damages expert, Dr. Stephen Becker. (Id. at 12–13.) In response, Rembrandt
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`argues that there is no indication that the jury applied an inappropriate method in arriving at a
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`damages amount and that, in fact, it was reasonable for the jury to award damages within the
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`range presented by Mr. Weinstein. (Resp. at 16 (quoting Versata Software, 717 F.3d at 1268
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`(“While the jury awarded less than the $170 million calculated by SAP’s expert, the jury is not
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`bound to accept the maximum proffered award and may choose an intermediate rate.”)).)
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`Additionally, Rembrandt disputes the reliability of Dr. Becker’s testimony, primarily because he
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`“failed to consider the only license limited to the patents-in-suit . . . .” (Id. at 19–20.)
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`Mr. Weinstein concluded that an appropriate damages amount would be between $14.5
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`and $31.9 million. (2/10/2015 P.M. Trial Tr., Dkt. No. 293 at 139:10–14.) The jury ultimately
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`awarded $15.7 million in damages—a number near the low end of Rembrandt’s request. As
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`discussed above, the Court finds that substantial evidence supports the jury’s verdict. Having
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`considered all of the record evidence, the Court concludes that the jury reached a reasoned and
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`supportable decision and declines to disturb the jury’s judgment. Consequently, Samsung’s
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`motion for judgment as a matter of law or, alternatively, a new trial as to damages based upon
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`any of the above arguments should be denied.
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`B.
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`Samsung is Not Entitled to a New Trial
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`In addition to the arguments discussed above, Samsung alternatively asserts that “the
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`Court’s sua sponte actions and exclusion of evidence” warrant a new trial on damages.
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`4 The jury deliberated for about an hour before returning the verdict. (Mot. at 11.)
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`Case 2:13-cv-00213-JRG Document 350 Filed 01/29/16 Page 16 of 19 PageID #: 12461
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`1. The BlackBerry-Rembrandt Agreement
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`Samsung repeats its contentions that the allocation clause in the BlackBerry-Rembrandt
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`Agreement is unreliable and that the Agreement itself is irrelevant to the facts of this case. (Mot.
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`at 13.) Samsung further contends that the Court’s ruling allowing introduction of the Agreement
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`without the specific payment and allocation terms was “clearly erroneous.” (Id.) Samsung argues
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`that, without the dollar amounts, the Agreement has no relevance. (Id. at 14.) Samsung also
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`claims that