En Banc Updates From The Federal Circuit

EcoFactor v. Google

The U.S. Court of Appeals for the Federal Circuit conducted oral hearing en banc in EcoFactor v. Google (Appeal No. 31-1101) on March 13. The Court reconsidered the admissibility of expert testimony regarding patent damages. The central issue is whether the plaintiff's damages expert adequately demonstrated the economic comparability of prior license agreements with varied scopes to a hypothetical negotiation between the parties.

The case attracted a number of amicus briefs and gives the Court an opportunity to address the broader question of how courts should assess expert testimony on patent damages, particularly when it involves prior licensing agreements and apportionment. The Court's en banc rehearing is particularly timely in light of the recent amendments to Rule 702, which clarify the trial judge's role in ensuring the reliability of expert testimony.