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TABLE OF CONTENTS

I. INTRODUCTION........................................................................................................................................ 1

II. THE EVIDENCE SUPPORTS AN AWARD OF REASONABLE ROYALTY DAMAGES 

AGAINST RED BULL............................................................................................................................... 2

A. There is Ample Expert Evidence In The Record Supporting A Reasonable Royalty Against 

Red Bull for the Halo .......................................................................................................................... 2

B. There Is Ample Non-Expert Evidence In The Record Supporting A Reasonable Royalty 

Against Red Bull.................................................................................................................................. 5

C. Red Bull Cannot Rely On Procedural Maneuvers To Exclude Its Own Evidence and 

Testimony ............................................................................................................................................. 9

III. THE JURY, NOT THE EXPERTS, DECIDES REASONABLE ROYALTY ................................. 12

IV. THERE IS NO REQUIREMENT FOR EXPERT TESTIMONY OR A GEORGIA-PACIFIC 

ANALYSIS................................................................................................................................................. 14

V. CONCLUSION .......................................................................................................................................... 17

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TABLE OF AUTHORITIES

Page(s)

Cases

Apple Inc. v. Motorola, Inc.,

757 F.3d 1286 (Fed. Cir. 2014)............................................................................................ 6, 12, 13, 16

Baker v. Canadian Nat'l/Ill. Cent. R.R.,

536 F.3d 357 (5th Cir. 2008).......................................................................................................... 10, 11

Bayer HealthCare LLC v. Baxalta Inc.,

989 F.3d 964 (Fed. Cir. 2021).............................................................................................................. 15

Charles v. Sanchez,

No. EP-13-CV-00193-DCG, 2015 WL 1345385 (W.D. Tex. Mar. 23, 2015)..................................... 11

CQ inc. v. TXU Min. Co.,

565 F.3d 268 (5th Cir. 2009)................................................................................................................ 11

Crystal Semiconductor Corp. v. Tritech Microelectronics Int'l, Inc.,

246 F.3d 1336 (Fed. Cir. 2001).............................................................................................................. 8

Daedalus Blue LLC v. SC DIJ Tech. Co., Ltd.

(W.D. Tex. last entry Nov. 11, 2021)............................................................................................. 13, 14

Dow Chem. Co. v. Mee Indus.,

341 F.3d 1370 (Fed. Cir. 2003)............................................................................................................ 15

MLC Intell. Prop., LLC v. Micron Tech., Inc.,

10 F.4th 1358 (Fed. Cir. 2021)....................................................................................................... 11, 12

Monsanto Co. v. McFarling,

488 F.3d 973 (Fed. Cir. 2007)................................................................................................................ 6

Powell v. Home Depot U.S.A., Inc.,

663 F.3d 1221 (Fed. Cir. 2011).............................................................................................................. 6

Tex. A & M Research Found. v. Magna Transp. Inc.,

338, F.3d 394, 402 (5th Cir. 2003)....................................................................................................... 11

TWM Mgf. Co. v. Dura Corp.,

789 F.2d 895 (Fed. Cir. 1986).............................................................................................................. 16

VirnetX, Inc. v. Cisco Sys., Inc.,

767 F.3d 1308 (Fed. Cir. 2014).............................................................................................................. 8

VLSI v Intel

(W.D. Tex. Apr. 20, 2021) ............................................................................................................. 15, 16

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I. INTRODUCTION

Red Bull has moved for summary judgment of no damages. This means Red Bull’s motion 

must be denied if there are any damages. Further, for the purpose of a motion for summary 

judgment of no damages, the court must assume liability for direct and indirect infringement—a 

fact that Red Bull has completely ignored in its motion. As a direct infringer of the Halo, Red Bull 

is jointly and severally liable for the damages attributable to Formula 1 and FIA. As an inducer of 

IndyCar’s infringement (in addition to Red Bull’s own direct infringement through design and 

testing of the Aeroscreen), Red Bull is liable for the damages attributable to IndyCar. Section 284 

is clear: if there is infringement, “the court shall award the claimant damages adequate to 

compensate for the infringement, but in no event less than a reasonable royalty.” 35 U.S.C. § 284.

This is true even if the plaintiff cannot or does not present damages evidence in the form of expert 

testimony, so long as there is record evidence on which a jury could award a reasonable royalty. 

Id. (“The court may receive expert testimony . . . .”). 

Red Bull’s entire motion is premised on the allegation that Nygaard “abandoned his 

damages claims against Red Bull.” This is untrue. First, there is plenty of expert evidence from all 

three of Plaintiff’s damages experts to support a reasonable royalty award against Red Bull for its 

infringement of the patent-in-suit, both with respect to the Halo and the Aeroscreen. In fact, Red 

Bull’s own damages expert has opined on evidence of non-zero damages, which Red Bull cited in 

its Motion. Ex. 13 at ¶ 35.

1 Second, there is non-expert evidence establishing non-zero damages 

for Red Bull, including testimony from Plaintiff,2as well as documents and testimony produced 

 

1 Unless otherwise stated, Exhibits are to the Declaration of Danielle J. Healey, filed with this 

brief.

2 Dkt. No. 266-5 at 358 (Q. (Mr. Haug) Have you lost any money because of anything that Red 

Bull has done? A. (Plaintiff) Outstanding licensing fees).

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by Red Bull. This evidence is not new; Red Bull itself produced the evidence during fact discovery, 

and Plaintiff is entitled to rely on that evidence. Further, there were new developments in the past 

few days that should be considered: Red Bull announced $450,000,000 in new sponsorships3

resulting from Max Verstappen’s 2021 Driver’s Championship win—Mr. Verstappen would not 

have won that championship but for the Halo saving him from injury (or worse) in July 2021 at 

the British Grand Prix.4

Because there is evidence of damages attributable to Red Bull, the no damages motion for 

summary judgment must be denied.

II. THE EVIDENCE SUPPORTS AN AWARD OF REASONABLE ROYALTY 

DAMAGES AGAINST RED BULL

A. There is Ample Expert Evidence In The Record Supporting A Reasonable 

Royalty Against Red Bull for the Halo

Nygaard’s experts have provided evidence to support a reasonable royalty against Red 

Bull for the Halo (as has Red Bull’s expert, Dr. Ugone). As an initial matter, if FIA and F1 are 

held liable as inducers, then the teams (including Red Bull) and their drivers are the direct 

 

3 Ex. 1.

4 Red Bull’s motion only goes to damages and does not challenge Plaintiff’s position that Mr. 

Verstappen would have been killed or suffered a career ending injury in his crash in Silverstone at 

the British Grand Prix in July 2021, so the court must assume for the sake of the no damages 

motion that Mr. Verstappen was eliminated from Formula 1 racing in the middle of the 2021 

season. There is ample evidence to support Plaintiff’s position that but for the Halo, Mr. 

Verstappen would have been out for the season. See Ex. 2 at 114−15; Ex. 2 at Appx. B, No. 323; 

Ex. 3; Ex. 4 at 297−300.

 nonetheless, for the purpose of the motion the evidence is construed in favor of Plaintiff.

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infringers. Thus, Red Bull is jointly and severally liable with the other defendants at least up to the 

amount of its share of the liability for the direct infringement. Nygaard’s damages experts 

provided a robust analysis of the appropriate royalty due to Nygaard for infringement of his patent 

by the Halo in Formula 1 racing. See, e.g., Dkt. No. 266-6 at 56 (“[T]he parties likely would have 

agreed to a lump sum royalty of between ”) (relying on and citing to the 

Szymanski report and McDonald report).5 The jury could apportion this in at least three ways: 

.

6

Based on this alone, Red Bull’s motion for summary judgment and to be dismissed from the case 

should be denied.

 

5

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When it comes to the Aeroscreen and IndyCar, all three of Plaintiff’s damages experts 

discuss the media value of the Aeroscreen to Red Bull in their reports. 

Exs. 10−12. Specifically, Dr. Szymanski, a leading sports 

economist, details in his report that the media value of the Aeroscreen’s development and testing 

was a minimum of , based on evidence provided by Red Bull. See Dkt. No. 266-7 at

¶ 88. His report further explains this is a conservative approximation that can be augmented in 

consideration of the value of saved lives, public recognition, and PR value. Id. at ¶ 91. Finally, Dr. 

Szymanski opines as to why the media value is a valid measure for a company like Red Bull 

Racing and Red Bull Advanced Technologies: 

Id. at ¶¶ 84−89; see also Ex. 33. Expert Jason McDonald 

provides further support for media value of the Aeroscreen to Red Bull, and the fact that Red Bull 

derived value from the media around Aeroscreen design and testing:

 “With respect to Red Bull, Red Bull has benefited from ‘free promotion’ of IndyCar and 

Aeroscreen across blogs, motor industry press & television, social media networks, and 

YouTube. (This is called ‘earned media’ in industry parlance.).” Dkt. No. 266-8 at 8.

 “[T]here are 1124 articles across blogs, Facebook, YouTube, etc., and a total engagement 

count of 146,010 for the ‘Aeroscreen.’” Id. at 21.

 “For ‘Red Bull Indycar’ there are 334 mentions and a total engagement of 19,091. For 

‘Red Bull Aeroscreen,’ there are 59 mentions and a total engagement of 7,014. . . . In 

summary, the ‘earned media’ (that is the ‘free’ media exposure) earned by Red Bull via the 

Aeroscreen in particular and Red Bull Racing, in general, is significant.” Id. at 22−23.

Furthermore, Red Bull itself, through its own damages expert Dr. Ugone, has put in record 

evidence for a jury to rely on to award damages (and indeed, cited to much of that evidence in its 

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Motion for Summary Judgment). For example, Dr. Ugone clearly explains his opinion that 

Ex. 13 at ¶ 26. To reach this conclusion, Dr. Ugone cites to the 

 (Mot. at 3 (citing Dkt. No. 266-4)), as well as 

 attached here as Exhibit 14. Additionally, Dr. Ugone discusses the invoices 

Mot. at 2−3 (citing Dkt. No. 266-2); Ex. 13 at ¶ 26. Dr. Ugone treats this 

as what it is: Red Bull (unsurprisingly) disagrees with Nygaard’s damages model. Ex. 13 at ¶36 

(“

”). Thus, it is not that Nygaard abandoned its claims, or that there is no evidence of 

those damages; it is merely that Red Bull disagrees. This is, at best, fodder for cross-examination 

of Nygaard’s experts. But the bottom line here is that it is evidence of non-zero damages; thus, 

Red Bull’s motion must fail on those grounds alone.

B. There Is Ample Non-Expert Evidence In The Record Supporting A 

Reasonable Royalty Against Red Bull

Red Bull has produced plenty of evidence supporting Nygaard’s claim for damages against 

it. This is not new evidence being produced by Nygaard; it is evidence provided by Red Bull and 

the other defendants in the final weeks of fact discovery through its deposition testimony and 

documents. In fact, some of the evidence is from news that has only become public in the past 

week (though Red Bull certainly knew of it earlier, and declined to produce related information in 

response to Plaintiff’s document requests or interrogatories).

Due to the nature of the Halo and Aeroscreen, a traditional royalty analysis of applying a 

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royalty rate to sales is simply inadequate. The value the Halo and Aeroscreen provide is in their 

life-saving and injury-sparing properties, and not in simple profits made from sales of a device. In 

determining a reasonable royalty, it is proper for the jury to consider the benefits the infringer 

received from its infringement. See, e.g., Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1315 (Fed. 

Cir. 2014) (holding that “estimat[ing] the value of the benefit provided by the infringed features 

by comparing the accused product to non-infringing alternatives” may be a reliable method for 

estimating a reasonable royalty); Powell v. Home Depot U.S.A., Inc., 663 F.3d 1221, 1240 (Fed. 

Cir. 2011) (finding it was proper for the jury to consider the benefits the infringer received in (1) 

the form of a competitive advantage, and (2) profits from sales of goods often sold in conjunction 

with lumber); Monsanto Co. v. McFarling, 488 F.3d 973, 980 (Fed. Cir. 2007) (“In determining 

the amount of a reasonable royalty, it was proper for the jury to consider not only the benefits of 

the licensing program to [the patentee], but also the benefits that [the patentee’s] technology 

conferred on [infringers].”). Red Bull, however, flatly refused to respond to interrogatories directed 

to understanding the benefits it received from the Halo and Aeroscreen, and produced only limited 

documents on those topics. Ex. 15 at Nos. 1-6; Ex. 16 at Nos. 8-10; Ex. 17 at Nos. 20-23, 26.

Red Bull did provide some documents and testimony related to the benefit it received from 

its infringing use of the Halo and Aeroscreen, and those documents and testimony are evidence of 

damages that it is appropriate for the jury to consider, in addition to the expert evidence discussed 

in Section II.A, above. This evidence has been identified and summarized in Nygaard’s 

Supplemental Response to Interrogatory No. 3 (attached as Exhibit 18). To understand Red Bull’s 

benefit from the infringement, it is necessary to keep in mind that Red Bull Racing is a 

 as stated by its . Ex. 5 at 120:3-6; see also Dkt. No. 

266-7 at ¶ 84. Red Bull Racing has had a according 

to team principal Christian Horner. Ex. 31; see also Ex. 32.

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Because of this business model, the media value of projects like the Aeroscreen is a very 

relevant measure of damages. Red Bull employees internally discussed 

While Red Bull objects to reliance on , its criticisms are unfounded. First, 

though they point out that Dr. Szymanski relied on produced by Red Bull, 

See Ex. 21; see also Ex. 22. Moreover, as shown in the deposition of Andrew Damerum, 

Ex. 23 at 58:25-60:8, 

88:7-90:17; 117:17-120:19 (Red Bull testimony regarding 

presented in Red Bull’s MSJ at Ex. 13 (Dkt. No. 266-9); Exs. 12, 19, 24; see also Ex. 23; 

https://www.youtube.com/watch?v=43eZhm4vtHc&t=5s (May 2019 Joint IndyCar Red Bull Press 

Conference on the Aeroscreen).

With respect to the Halo, in addition to the evidence already discussed supporting the 

reasonable royalty to Formula 1 and FIA, for which Red Bull would be jointly and severally liable 

as a direct infringer, there is additional evidence supporting the benefit the Halo provided to Red 

Bull directly, and in particular to Red Bull driver Max Verstappen. But for the Halo, Verstappen 

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would likely (at least) have missed the remainder of the 2021 season after his accident at 

Silverstone. Ex. 2 at 114−15.

7 Had that happened, he could not have won the 2021 Driver’s 

Championship. Moreover, the Halo saved Lewis Hamilton’s life at the 2021 Italian Grand Prix, 

when Verstappen crashed into him. Id. at 110−113.

8 Verstappen was subsequently sanctioned for 

breaking the rules and causing the crash. Ex. 25. In the last week, Red Bull publicly announced 

that it entered into two extremely new sponsorship contracts totaling $450,000,000. Exs. 26−27. 

It is a reasonable conclusion that these sponsorship contracts are a direct result of Verstappen’s 

2021 Driver’s Championship; it is also a reasonable conclusion that if Verstappen’s aggressive 

driving had resulted in Lewis Hamilton’s death, he would not have received these contracts. Red 

Bull has failed to produce documents and information surrounding the negotiation of these 

contracts, and should supplement its document production immediately with that information.

Moreover, Red Bull is liable for damages by those it induced to infringe, which includes 

IndyCar (directly through testing of the Aeroscreen in 2019). Even if IndyCar’s “numbers” cannot 

be probative evidence of what Red Bull sees as the earned media value or an objective measure of 

earned media value, it is the earned media value for IndyCar. The earned media value for only the 

2019 year is a small portion of the benefit IndyCar and the teams and drivers derived from the 

Aeroscreen: “A party that induces or contributes to infringement is jointly and severally liable with 

the direct infringer for all general damages.” Crystal Semiconductor Corp. v. Tritech 

Microelectronics Int'l, Inc., 246 F.3d 1336, 1361 (Fed. Cir. 2001). 

The Aeroscreen is not able to function without the Halo. The reason for sales of Aeroscreen 

is the Halo. No apportionment is required under the entire market value rule. VirnetX, Inc. v. Cisco 

 

7

8

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Sys., Inc., 767 F.3d 1308, 1326 (Fed. Cir. 2014) (“[A] patentee may assess damages based on the 

entire market value of the accused product only where the patented feature creates the basis for 

customer demand or substantially creates the value of the component parts.”). Moreover, while 

—and is especially so compared to the time 

and resources put in by Mr. Nygaard, FIA, and others to develop what became the Halo. If the jury 

believes Red Bull is entitled to a credit for its contribution, then the jury can deduct

 from the value of the device—indeed, Red Bull has said the royalty should be based on 

rather than the value of the invention—but this is not the law. 

Indeed, Red Bull as an indirect infringer is liable for the damages of its direct infringers. 

Red Bull directly and indirectly infringed the Halo and as a result, derived substantial benefit from 

the patent-in-suit. Red Bull is a direct infringer because it collaborated with IndyCar to design the 

Aeroscreen. See e.g., Third Amended Complaint Dkt. No. 231 at ¶¶ 117, 121, 182, 199. Red Bull 

also induced direct infringement since it was present during various testing of the Aeroscreen in 

the U.S. and after testing, continued to offer insights to improve the performance of the 

Aeroscreen. See e.g., id. at ¶¶ 127, 129, 183, 204, 347. 

C. Red Bull Cannot Rely On Procedural Maneuvers To Exclude Its Own 

Evidence and Testimony

Red Bull believes it can win this case by procedural maneuvering. It delayed its document 

productions and depositions until the very end of fact discovery,9and altogether refused to produce 

certain testimony and evidence related to damages. Then, Red Bull filed this motion for summary 

 

9

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judgment in part to prevent Nygaard relying on that same late-produced evidence, and in part 

attempting to challenge Nygaard for lacking the very evidence that Red Bull has refused to provide. 

For example, Red Bull’s motion seeks to undercut Nygaard’s use of the 2019 media value 

of the Aeroscreen as a measure of damages because Dr. Szymanski does not tie that number to 

Red Bull’s specific earnings, monetization, or spend. Mot. at 8−9; Ex. 13. at 15−17. But this 

information, if it exists, is in the hands of Red Bull and no one else, and Red Bull refused to 

produce it or provide a competent witness to testify on it. Plaintiff’s Request for Production No. 

26 squarely demanded this information, but Red Bull failed to produce it, despite the very high 

likelihood that Red Bull has this type of information (analyses translating media value and social 

media into actual earnings) in its possession. Ex. 17; See, e.g., Ex. 28 at 102:25-104:9, 110:22-

11:20 (Rough Tr. of Mr. McDonald). Additionally,

 and demurred on any substantive knowledge about the topics 

relating to the earned media from the Aeroscreen. Ex. 23 at 118:18-120:19. Nygaard served its 

supplemental interrogatory responses merely three months after the deposition of Red Bull’s last

damages witnesses, and before the before the close of expert discovery; Red Bull cannot now cry 

prejudice under Rule 37 by Nygaard’s reliance on Red Bull’s own evidence. Parties routinely 

update interrogatory responses to disclose legal theories after the close of fact discovery. See e.g., 

Baker v. Canadian Nat'l/Ill. Cent. R.R., 536 F.3d 357, 368−69 (5th Cir. 2008) (holding that a 

surveillance tape that was disclosed via supplemental interrogatory after the discovery deadline, 

but several months before trial was admissible and not prejudicial). However, Red Bull chose to 

file this dispositive motion months before the deadline to do so, and therefore before Nygaard’s 

supplemental interrogatory responses were served.

Red Bull mistakenly believes Rule 37 bolsters their position that Plaintiff “cannot now rely 

on any new evidence that he did not disclose in his initial disclosures or interrogatory response.” 

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Dkt. No. 266 at 11. However, Fifth Circuit precedent underminesthis argument and showsit would 

be clear legal error by this Court to exclude Nygaard’s new evidence. The court uses a four-factor 

test to determine whether a district court abused its discretion to exclude evidence: (1) the party’s 

explanation, if any, for its failure to disclose the information in a timely manner; (2) the prejudice 

to the opposing party if the evidence is admitted; (3) the possibility of curing such prejudice by 

granting a continuance; and (4) the importance of the evidence. See Tex. A & M Research Found. 

v. Magna Transp. Inc., 338, F.3d 394, 402 (5th Cir. 2003). Guided by this analysis, courts in the 

Fifth Circuit have permitted evidence provided in supplemental interrogatory responses after the 

discovery deadline and evidence originally in the opposing party’s possession. See e.g., Baker, 536

F.3d at 368−69; Charles v. Sanchez, No. EP-13-CV-00193-DCG, 2015 WL 1345385, at *4 (W.D. 

Tex. Mar. 23, 2015) (noting the purpose of Rule 26 is to “prevent an ambush, resulting in surprise 

or prejudice, of undisclosed, or untimely disclosed, evidence” and that “[n]o real prejudice exists 

to the opposing party in allowing the disclosing party to introduce evidence that has been in the 

opposing party’s possession for several months if not years”).

Red Bull relies on MLC and CQ as support for its assertion that Nygaard cannot now rely 

on facts in the record to support a damages analysis, but both cases are distinguishable: the 

evidence that was excluded in those case was evidence that belonged to the plaintiff, and evidence 

about which only the plaintiff’s witnesses could testify. MLC Intell. Prop., LLC v. Micron Tech., 

Inc., 10 F.4th 1358, 1371−72 (Fed. Cir. 2021) (“[H]ad [Plaintiff] disclosed this information, 

[Defendant] could have sought fact discovery regarding this contention.”); CQ inc. v. TXU Min. 

Co., 565 F.3d 268, 278−79 (5th Cir. 2009) (seeking to present “various non-expert evidence as to 

the amount of CQ’s contract damages” after the Court ruled that Texas contract damages are 

limited to a party’s actual loss, and cannot be estimated with a reasonable royalty). The court in 

MLC specifically noted that it was the fact that the evidence was in possession of Plaintiff that 

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“largely mitigate[ed] any timing and fairness concerns preventing [Plaintiff] from knowing its 

contentions about a reasonable royalty until after close of fact discovery.” MLC, 10 F.4th at 1371.

This is in direct contrast to the situation here, where the evidence at issue was in 

III. THE JURY, NOT THE EXPERTS, DECIDES REASONABLE ROYALTY

As clearly demonstrated above, this is not a case “completely lacking any evidence on 

which to base a damages award,” as Red Bull would have this court believe. Mot. at 12 (citing 

Apple v. Motorola, 757 F.3d 1286, 1328 (Fed. Cir. 2014)). In fact, at least some of the evidence in 

the record comes from Red Bull’s own Motion for Summary Judgment, and its own damages 

expert. See Section II.A-B, above. Nygaard, of course, disagrees, and believes that is an 

accurate indicator of the value of the Aeroscreen to Red Bull. See Section II.A, above. The district 

court may determine that the record does not support either of these figures, and choose an 

intermediate figure instead. See Apple, 757 F.3d at 1328. But as the Apple case points out, in the 

very same paragraph cited by Red Bull in its Motion, “[o]f course, it seems unlikely that a willing 

licensor and willing licensee would agree to a zero royalty payment in a hypothetical negotiation, 

where both infringement and validity are assumed.” Id.

At summary judgment, as is the case here, a judge may only award 

a zero royalty for infringement if there is no genuine issue of 

material fact that zero is the only reasonable royalty. Thus, if a 

patentee raises a factual issue regarding whether it is due any nonzero royalty, summary judgment must be denied. In any event, 

simply because a patentee fails to show that its royalty estimate is 

correct does not, by itself justify awarding a royalty of zero at 

summary judgment.

Id. Thus, in order to support a zero royalty on summary judgment, Red Bull would need to

“provide[] evidence or argument to support a zero royalty.” Id. at 1329. For example, Red Bull has 

not provided any evidence that Nygaard “would have been willing to accept no payment for [Red 

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Bull’s] infringement.” Id. “Nor is there any evidence that, at the time of infringement, [Red Bull] 

concluded that the [patent-in-suit] had no value.” Id; see also Donald S. Chisum, Chisum on 

Patents § 20.07[3][a] (2011) (“In considering the question of evidence and certainty of proof 

required to justify an award of a reasonable royalty, one should distinguish between (1) the 

existence of damage to a patentee which will support any award and (2) the evidentiary support 

for a particular rate or quantity as a reasonable royalty. As to the first issue, no specific proof 

should be required. The premise of the reasonable royalty measure is that a holder of a valid and 

infringed patent has inherently suffered legal damage at least to the extent of a lost license royalty 

opportunity.”).

Red Bull’s reliance on TecSec is misplaced. Mot. at 12. There, the zero damages award 

was not during the summary judgment phase, as is the case here and as is described in Apple, but 

instead was in response to a jury’s verdict of no indirect infringement, where the only damages 

presented were damages for indirect infringement. TecSec, 978 F.3d at 1291−92. That is very 

different from the situation here, where there is evidence of damages resulting from Red Bull’s 

direct and indirect infringement.

Red Bull also relies heavily on Daedalus, a recent case before this Court. However, 

Daedalus is inapplicable for several reasons. First, in Daedalus, this Court recognized that it was 

inappropriate at that time to enter an order of no damages or a dismissal, and ordered further 

summary judgment briefing from the parties. Dkt. No. 267-5 at 20−21. To date, that briefing has 

not been filed, and no related order has issued. See Docket, Daedalus Blue LLC v. SC DIJ Tech. 

Co., Ltd., (W.D. Tex. last entry Nov. 11, 2021) (6:20-cv-00234-ADA). As explained at length in 

this Response, it is inappropriate to grant summary judgment of no damages, or to prevent a party 

from presenting its evidence for a damages case to the jury or to put on the evidence through the 

other party’s fact and expert witnesses, simply because a plaintiff does not present its damages 

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case through experts. 

Second, Daedalus dealt with the situation where the Court had already excluded the 

damages expert opinion. That is not the case here; contrary to Red Bull’s allegations, Nygaard has 

presented expert opinion regarding appropriate damages for Red Bull (for both direct and indirect 

infringement), and the Court has not excluded that expert evidence. In fact, Dr. Szymanski is the 

preeminent economist in the field of sports, and has testified for both the U.S. government and the 

U.K. government, as well as authored 14 books on this topic. Ex. 29. Any complaints Red Bull 

has with his report at best are for cross-examination.

Third, in Daedalus the parties had reached the final pretrial conference and the Plaintiff 

still had not supplemented its discovery responses and initial disclosures to identify the additional 

evidence it intended to rely on, even after its expert report was excluded. Once again, that is not 

the case here; Red Bull filed its motion early, but Nygaard has supplemented its discovery 

responses, and done so within a reasonable amount of time and with plenty of notice to Red Bull 

under Rule 37(c).10 Finally, the majority of the discussion in the Daedalus transcript was focused 

on the issue of comparable licenses, and how to explain those licenses to a jury without an expert. 

That is not the evidence at issue here, where there are no comparable licenses in the record and 

instead the evidence attached by Red Bull to its motion and its expert report alone contradict Red 

Bull’s positions. In combination with other evidence, Red Bull simply cannot support its argument 

that there are no damages.

IV. THERE IS NO REQUIREMENT FOR EXPERT TESTIMONY OR A GEORGIAPACIFIC ANALYSIS

The impetus for Red Bull’s motion for summary judgment was the service of Nygaard’s 

 

10 and the last witnesses 

relevant to damages were presented on December 6, 2021. Further, Plaintiff’s supplement 

includes new events occurring within the last few days.

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damages expert reports; despite paying lip service to the non-expert evidence to support damages, 

the focus of the motion is on the lack of an expert witness report on a Georgia-Pacific analysis

specific to Red Bull. First, this is incorrect; as discussed above, there is a Georgia-Pacific analysis 

as to the Halo, and a jury could reasonably designate some of those damages to Red Bull for its 

direct infringement through the Red Bull team, and its indirect infringement through the Alpha 

Tauri team.

But more importantly, Red Bull’s motion incorrectly asserts that expert testimony is

required. See, e.g., Mot. at 8 (“The jury in this case cannot determine reasonable royalty damages 

against Red Bull without expert testimony about how those damages should be determined.”). It 

is not. To the contrary, “section 284 is clear that expert testimony is not necessary to the award of 

damages, but rather may [be] received . . . as an aid.” Dow Chem. Co. v. Mee Indus., 341 F.3d 

1370, 1382 (Fed. Cir. 2003) (emphasis in original) (internal quotations to § 284 removed); see also 

Bayer HealthCare LLC v. Baxalta Inc., 989 F.3d 964, 985 (Fed. Cir. 2021) (“A party need not 

present expert testimony on damages or, as a corollary, on every aspect of damages, such as a 

single royalty rate.”). In Dow, the district court excluded the patentee’s damages expert, then stated 

“since that’s the only evidence of damages, then I find that plaintiff has failed to sustain its burden 

of proving damages.” Dow, 341 F.3d at 1381. The Federal Circuit reversed, agreeing with the 

plaintiff that “reasonable royalty damages can be awarded even without such [expert] testimony; 

that there is a presumption of damages where infringement has been established; and that there is 

other evidence in the record, including the evidence supporting [the expert’s] excluded opinions, 

that the district court must consider.” Id.

This court’s instructions to the jury in a recent case illustrates these principles. The court 

charged the jury that it was free to disregard an expert’s testimony and opinion that they do not 

find useful or credible. Transcript of Record at 1571, VLSI v Intel, (W.D. Tex. Apr. 20, 2021) (No. 

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W-21-CV-299). The court further told the jury it was free to accept or reject the testimony of any 

witness. Id. Moreover, in VLSI, this instruction was followed by the Georgia-Pacific factors. Id.

at 1592. The judge then provided the Georgia-Pacific factors to the jury; thus, it is the jury that 

ultimately applies the Georgia-Pacific analysis, and decides whether and how to apply any one 

factor. Id. at 1592−94. The jury is also free to consider any other evidence of damages, and to give 

any evidence whatever weight it sees fit. See id. at 1566−67. Plaintiff’s expert reports provide 

evidence jurors can rely on in deliberating as instructed, and making their findings on damages. 

Plaintiff additionally has other evidence that the jurors can consider in deliberating damages, as 

the jury instruction permits.

Moreover, the reasonable royalty analysis, whether or not provided through expert 

testimony, need not be in the form of a Georgia-Pacific analysis. Apple, 757 F.3d at 1315. 

“[E]stimating a ‘reasonable royalty’ is not an exact science. As such, the record may support a 

range of ‘reasonable’ royalties, rather than a single value. Likewise, there may be more than one 

reliable method for estimating a reasonable royalty. . . . All approaches have certain strengths and 

weaknesses and, depending on the facts, one or all may produce admissible testimony in a single 

case.” Id. “Section 284 does not mandate how the district court must compute [a royalty] figure, 

only that the figure compensate for the infringement.” TWM Mgf. Co. v. Dura Corp., 789 F.2d 

895, 899 (Fed. Cir. 1986). Red Bull’s own damages expert acknowledges that Georgia-Pacific is 

not the only way. Ex. 13 at ¶ 24 (“In addition to Georgia-Pacific, other recent district court and 

Federal Circuit opinions such as Lucent, Cornell, ResQNet, IP Innovation, Uniloc, 

Laser0Dynamics, and VinetX provide guidance as to the evaluation of royalty damages in patent 

infringement matters.”).

Therefore, dismissing Red Bull from this suit, or entering a finding of zero or nominal 

damages based solely on the (incorrect) argument that no expert has presented a Georgia-Pacific 

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analysis against it is legal error, and in clear violation of § 284’s requirement of a royalty rate that 

compensates for infringement.

V. CONCLUSION

Plaintiff respectfully requests that the Court deny Red Bull’s motion in its entirety.

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Dated: February 19, 2022 Respectfully submitted,

By: /s/ Danielle J. Healey

Danielle J. Healey

Attorney in Charge

Texas Bar No. 09327980

healey@fr.com

Brian G. Strand

Texas Bar No. 24081166

strand@fr.com

Bailey Benedict

Texas Bar No. 24083139

benedict@fr.com

Jacqueline T. Moran (pro hac vice)

Texas Bar No. 24121740

jtmoran@fr.com

FISH & RICHARDSON P.C.

1221 McKinney Street, Suite 2800

Houston, Texas 77010

Telephone: (713) 654-5300

Facsimile: (713) 652-0109

Tommy Jacks

Texas Bar No. 10452000

jacks@fr.com

FISH & RICHARDSON P.C.

111 Congress Avenue, Suite 810

Austin, Texas 78701 

Telephone: (512) 472-5070

Facsimile: (512) 320-8935

Ahmed J. Davis (pro hac vice)

Washington D.C. Bar No. 472321 

adavis@fr.com

FISH & RICHARDSON P.C.

1000 Maine Ave SW

Washington, D.C. 20024

Telephone: (202) 783-5070

Facsimile: (202) 783-2331

COUNSEL FOR PLAINTIFF

JENS H. S. NYGAARD

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the above document was 

served on February 19, 2022, to all counsel of record via electronic mail.

/s/ Danielle J. Healey

Danielle J. Healey

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