The May 12 order granted in part and denied in part Daubert motions from both sides in Maquet Cardiovascular LLC’s patent infringement suit against Abiomed Inc., Abiomed R&D, Inc., and Abiomed Europe GmbH.
The court admitted one of three apportionment approaches offered by Maquet’s technical expert, Boris Leschinsky, while excluding his approaches three and four for relying on “feature counting” that treats each claimed component as an independent unit of value. The opinion holds that “the value of a combination does not equal the sum of its parts.”
Leschinsky’s excluded approaches incorporated prior expert work product to calculate that between 47.73% and 53.79% of the value of Abiomed’s accused Impella products was attributable to Maquet’s patented guidance features. Maquet’s damages expert, James E. Malackowski, adopted the lower figure in his report. The court excluded the portions of Malackowski’s testimony that rely on those approaches.
The ruling also admitted Malackowski’s fallback theory that the entire market value rule applies, finding sufficient evidentiary support that the patented features “redefined the market for mechanical circulatory support” and that interventional cardiologists would not use the accused products without percutaneous insertion capability. Abiomed may challenge the weight of that evidence on cross-examination, the court said.
The court separately denied Maquet’s motion to exclude rebuttal expert John Bone, finding his analysis in this case was “more closely tied to the facts” than in a prior case where a Texas court excluded his testimony. Unlike that case, Bone here had a documented basis for identifying which survey attributes correspond to the patented invention, the court found.
Maquet’s theory that Leschinsky was not required to isolate the value of conventional features because the patent claims a novel combination of those elements “does not match the methodology actually applied,” the opinion states. The court acknowledged that removing the value of all conventional elements would leave nothing, but said Leschinsky’s approaches nonetheless failed to measure “how much new value is created combination.”
The opinion cites Federal Circuit precedent for the principle that when the inventive aspect of a patent is a combination of conventional components, the value arises not presence of discrete features but those features interact to create a new product.
The court denied Abiomed’s motion to exclude Malackowski’s convoyed-sales opinions, rejecting the argument that non-patented products like consoles, services, and accessories cannot form a functional unit with the patented product because they can also be used with unaccused Abiomed devices. Citing Federal Circuit precedent, the opinion holds that independent use does not necessitate a non-functional relationship.