After months of chipping away at a patent plaintiff’s damages case against Intel Corp., a Wilmer Cutler Pickering Hale and Dorr team led by William Lee landed a knock-out blow this week. U.S. District Judge Richard Andrews in Wilmington, Del., granted summary judgment to Intel on Monday, ruling that Boies, Schiller & Flexner client AVM Technologies LLC failed to present a viable damages theory.
AVM, a non-practicing entity, holds a patent for a process of speeding up microprocessors. In 2010, it hired Covington & Burling to bring an infringement complaint against Intel. AVM cycled through three more firms before finally settling on Boies Schiller in November 2012, three months before a scheduled trial date. The head of Boies Schiller’s patent practice, D. Michael Underhill, served as AVM’s lead counsel.
AVM submitted an expert report on May 15, 2012 pegging damages at $150 million to $300 million "or more." AVM’s expert witness, consultant Larry Evans, based his calculation on various settlement agreements Intel has reached over the years with other entities.
The judge, however, ruled on Jan. 4 that he would likely disqualify Evans on the grounds that the settlement agreements the expert relied on to make his calculation on were irrelevant. Before making his final decision, Andrews decided to hear live testimony from Evans at a hearing on Feb. 1.
With AVM’s damages theory in jeopardy, Andrews cancelled an February 11 trial date. AVM had previously stated that it would only go to trial on that day if it could allege at least $100 million in damages.
Andrews stuck to his guns and disqualified AVM’s expert on Feb. 21, as we reported here. The judge stopped short of formally dismissing the case, ruling that there might still be a bit of evidence left in the case from which a jury could find damages.
Andrews finally tossed the case on Friday, ruling that Intel is entitled to summary judgment on the issue of damages. Boies Schiller had tried to offer a new damages theory through testimony from the inventor of AVM’s patent, but Andrews blocked the testimony. The testimony should have been proffered earlier, Andrews ruled, and AVM’s late disclosure would be unfairly prejudicial to Intel.