Order: The Federal Circuit granted Google’s petition for rehearing en banc, vacating the split decision in EcoFactor, Inc. v. Google LLC, 104 F.4th 243 (Fed. Cir. 2024) decided on June 3, 2024. The rehearing is limited to revisiting the Court’s decision allowing testimony from EcoFactor’s damages expert regarding a reasonable royalty rate based on a hypothetical negotiation analysis in view of Federal Rule of Evidence 702 and Daubert. In particular, EcoFactor’s expert relied upon three license agreements between EcoFactor and third parties that set forth a lump sum amount rather than a royalty rate, but that was allegedly based on what EcoFactor believed to be a reasonable royalty calculation for estimated past and projected future sales. In its initial decision, the majority found this evidence to adequately support EcoFactor’s damages expert’s testimony, but this ruling will now be reconsidered.
Citation: Ecofactor, Inc. v. Google LLC, 115 F.4th 1380 (Fed. Cir. 2024)
Federal Circuit Precedential 
Leave a comment