The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON LOST PROFIT DAMAGES
This matter comes before the Court on Defendant's motion for summary judgment on lost profit damages. Plaintiff filed an opposition to the motion, and Defendant filed a reply. For the reasons discussed below, the Court grants in part and denies in part Defendant's motion.
This case involves a claim for infringement of United States Patent Number 6,347,553 ("the '553 Patent"). The pretrial conference is scheduled for January 6, 2012, and the trial is scheduled to begin on January 30, 2012. At trial, Plaintiff intends to seek a variety of damages, including lost profits on the sales of its competing infusion pumps, lost sales of related products and services and a reasonable royalty on the remaining sales of Defendant's infringing pumps. (Opp'n to Mot. at 6.) The present motion is directed towards the first two categories of damages.
Defendant moves for summary judgment on Plaintiff's use of the entire market value rule in calculating its lost profits, including lost profits on convoyed sales, and Plaintiff's price erosion damages. Defendant argues there is insufficient evidence to warrant presentation of the entire market value rule to the jury, therefore it is entitled to summary judgment on that issue. Defendant also takes issue with the methodology of Plaintiff's damages expert, Robert H. Wallace, in forming his opinions on lost profits and price erosion damages. The latter arguments go to the admissibility of Mr. Wallace's opinion, and are not appropriate for resolution on a motion for summary judgment. Accordingly, the Court will not address those arguments further in this Order. Rather, the Court's discussion is limited to whether Plaintiff has presented sufficient evidence to allow it to present the entire market value rule to the jury.
"Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377, 1380 (Fed. Cir. 2005) (citing Fed. R. Civ. P. 56(c)). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).
The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). To meet this burden, the moving party must identify the pleadings, depositions, affidavits, or other evidence that it "believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies this initial burden, then the burden shifts to the opposing party to show that summary judgment is not appropriate. Id. at 324. The opposing party's evidence is to be believed, and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). See also IPXL, 430 F.3d at 1380 (quoting Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., 145 F.3d 1303, 1307 (Fed. Cir. 1998)) (stating "'evidence must be viewed in the light most favorable to the party opposing the motion, with doubts resolved in favor of the opponent.'") However, to avoid summary judgment, the opposing party cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Instead, it must designate specific facts showing there is a genuine issue for trial. Id. More than a "metaphysical doubt" is required to establish a genuine issue of material fact." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
B. Entire Market Value Rule
The first argument in support of Defendant's motion for summary judgment is that there is insufficient evidence to support Plaintiff's use of the entire market value rule in calculating its lost profit damages. The parties disagree about the law concerning the entire market value rule, and also ...