Counsel for Keebler retained Cornerstone Research and Dr. Michael Keeley of Cornerstone Research, to analyze the plaintiffs’ damages claim in this patent infringement case.
Retained by Mayer Brown
Counsel for Keebler retained Cornerstone Research and Dr. Michael Keeley, a senior vice president of Cornerstone Research, to analyze the plaintiffs’ damages claim in a patent infringement case brought against Keebler by Brandeis University and GFA Brands. Federal Appellate Court Judge Richard A. Posner, sitting by designation, presided over the case in the U.S. District Court for the Northern District of Illinois, Eastern Division.
The plaintiffs accused Keebler, a major cookie manufacturer in the United States, of infringing a patent related to a cholesterol-free margarine that was allegedly created during Keebler’s mixing process for certain cookies. The plaintiffs sought reasonable royalty damages.
In his Daubert order, Judge Posner found that the plaintiffs’ damages expert “has not used a reasonable methodology to calculate the plaintiffs’ damages.”
Dr. Keeley opined that reasonable royalty damages, if any, depend on the costs to Keebler of switching to the best non-infringing alternative (i.e., potentially higher manufacturing costs or loss of business). Dr. Keeley found that the plaintiffs overstated the reasonable royalty damages by a wide margin, in part, because their expert failed to consider these costs. Dr. Keeley also found that the plaintiffs’ expert based her damages claim on a license agreement that was not comparable for several reasons, and that she ignored the most comparable license agreement.
In his Daubert order, Judge Posner found that the plaintiffs’ damages expert “has not used a reasonable methodology to calculate the plaintiffs’ damages.” He excluded a large part of the damages opinion of the plaintiffs’ expert because she failed to use comparable license agreements for the case and she ignored potential non-infringing alternatives.