IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

JENS H.S. NYGAARD,

Plaintiff,

v. 

FÉDÉRATION INTERNATIONALE DE 

L’AUTOMOBILE, FORMULA ONE 

MANAGEMENT LTD., FORMULA ONE WORLD 

CHAMPIONSHIP, MERCEDES-BENZ GRAND 

PRIX LTD., DAIMLER AG, LEWIS HAMILTON, 

RED BULL TECHNOLOGY LTD., RED BULL 

RACING LTD., FERRARI S.P.A., CHARLES 

LECLERC, and DALLARA AUTOMOBILI S.P.A.,

Defendants.

Case No. 6:20-cv-00234-ADA

MOTION OF THE RED BULL DEFENDANTS FOR SUMMARY JUDGMENT OF

NO DAMAGES AND TO DISMISS THEM FROM THIS CASE 

Deron R. Dacus 

State Bar No. 00790553 

THE DACUS FIRM, P.C.

821 ESE Loop 323, Suite 430 

Tyler, TX 75701 

Phone: (903) 705-1117 

Fax: (903) 581-2543 

Edgar H. Haug (pro hac vice) 

Mark A. Chapman (pro hac vice) 

Roman Khasidov (pro hac vice) 

HAUG PARTNERS LLP

745 Fifth Avenue, 10th Floor 

New York, New York 10151 

Phone: (212) 588-0800 

Fax: (212) 588-0500 

Counsel for Defendants Red Bull Racing 

Ltd. and Red Bull Technology Ltd. 

February 2, 2022

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TABLE OF CONTENTS

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

II. BACKGROUND FACTS.................................................................................................. 2

A. Red Bull’s Involvement With the Accused Halo and Aeroscreen,

and Nygaard’s Allegations Against Red Bull ........................................................ 2

B. Nygaard’s Initial Disclosures, Interrogatory Response, and

Deposition Testimony Regarding the Damages He Seeks from Red

Bull ......................................................................................................................... 3

C. Nygaard’s Damages Expert Reports, Which Do Not Include Any

Damages Claims Against Red Bull........................................................................ 5

III. ARGUMENT..................................................................................................................... 7

A. Summary Judgment of No Damages Against Red Bull Should Be

Granted Because Nygaard Cannot Prove Any Damages Against

Red Bull ................................................................................................................. 7

1. Nygaard Cannot Prove Damages Against Red Bull Using

Expert Evidence ......................................................................................... 8

2. Nygaard Cannot Prove Damages Against Red Bull Using

Other Evidence......................................................................................... 11

B. Alternatively, Summary Judgment of Nominal Damages Against

Red Bull Should Be Granted................................................................................ 12

C. If Summary Judgment Is Granted, Red Bull Should Be Dismissed

With Prejudice ..................................................................................................... 13

IV. CONCLUSION ................................................................................................................ 14

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TABLE OF AUTHORITIES

Cases

AOS Holding Co. v. Bradford White Corp., 

No. 18-cv-00412, 2021 WL 5411103 (D. Del. Mar. 31, 2021) ................................................ 13 

Apple Inc. v. Motorola, Inc., 

757 F.3d 1286 (Fed. Cir. 2014)..................................................................................... 12, 13, 14 

Apple, Inc. v. Motorola, Inc., 

869 F. Supp. 2d 901 (N.D. Ill. 2012) ........................................................................................ 14 

Aro Mfg. Co. v. Convertible Top Replacement Co., 

377 U.S. 476 (1964) .................................................................................................................... 9 

Celanese Int’l Corp. v. Oxyde Chems., Inc., 

554 F. Supp. 2d 725 (S.D. Tex. 2008) ...................................................................................... 14 

Celotex Corp. v. Catrett, 

477 U.S. 317 (1986) .................................................................................................................... 7 

CQ, Inc. v. TXU Min. Co., L.P., 

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

Devex Corp. v. Gen. Motors Corp., 

667 F.2d 347 (3d Cir. 1981)................................................................................................ 12, 13 

eBay Inc. v. MercExchange, LLC, 

547 U.S. 388 (2006) .................................................................................................................. 13 

Exmark Mfg. Co. v. Briggs & Stratton Power Prods. Grp., LLC, 

879 F.3d 1332 (Fed. Cir. 2018)............................................................................................... 8, 9 

Icon Laser Solutions, LLC v. Abercrombie & Fitch Co., 

No. 3:15-cv-03308, 2016 WL 7379138, (N.D. Tex. July 13, 2016)......................................... 14 

Info-Hold, Inc. v. Muzak LLC, 

No. 1:11-cv-00283, 2013 WL 6008619 (S.D. Ohio Nov. 13, 2013) ........................................ 14 

Kranz v. Midland Credit Mgmt., 

No. 18-cv-00169, 2020 WL 2326140 (W.D. Tex. May 8, 2020) ............................................. 14 

Lindemann Maschinenfabrik v. American Hoist & Derrick Co., 

895 F. 2d 1403 (Fed. Cir. 1990).................................................................................................. 7 

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

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

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Promega Corp. v. Life Techs. Corp., 

875 F.3d 651 (Fed. Cir. 2017)............................................................................................. 7, 8, 9 

Riles v. Shell Exploration and Prod. Co., 

298 F.3d 1302 (Fed. Cir. 2002)................................................................................................... 9 

TecSec, Inc. v. Adobe, Inc., 

978 F.3d 1278 (Fed. Cir. 2020)....................................................................................... 8, 12, 13 

Statutes

35 U.S.C. § 284 ......................................................................................................................... 9, 12 

35 U.S.C. § 287 ............................................................................................................................. 14 

Rules

Fed. R. Civ. P. 26(e) ..................................................................................................................... 11 

Fed. R. Civ. P. 37(c)(1) ................................................................................................................. 11 

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I. INTRODUCTION

Defendants Red Bull Racing Ltd. and Red Bull Technology Ltd. (collectively “Red

Bull”) respectfully move for summary judgment of no damages against Red Bull, and to dismiss

Red Bull from this case with prejudice. 

After forcing Red Bull to endure almost two years of burdensome and expensive 

litigation, Nygaard has abruptly abandoned his damages claims against Red Bull and instead 

decided to pursue damages only from co-defendants FIA1

 and F12. In particular, Nygaard 

decided to not include in any of his three damages expert reports any opinions at all regarding 

damages against Red Bull for either the accused Halo or the accused Aeroscreen.3

 

For the Halo, Nygaard’s lead damages expert Jeffrey Stec states his opinion about the 

amount of reasonable royalty damages against FIA and F1, and sets forth his Georgia-Pacific

reasonable royalty analysis for FIA/F1 including a hypothetical negotiation between Nygaard 

and FIA/F1. But Dr. Stec and Nygaard’s other damages experts Stefan Szymanski and Jason 

McDonald do not analyze or offer any opinion about reasonable royalty damages against Red 

Bull, do not conduct a Georgia-Pacific analysis or any other reasonable royalty analysis for Red 

Bull, and do not include Red Bull in any hypothetical negotiation. 

For the Aeroscreen, Nygaard’s damages experts do not analyze or offer any opinion 

about reasonable royalty damages at all, and they do not conduct any Georgia-Pacific analysis or 

other reasonable royalty analysis at all. Dr. Szymanski sets forth his opinion about the purported 

“media value” of the Aeroscreen. However, he and Nygaard’s other damages experts do not 

1

 Fédération Internationale de l’Automobile (“FIA”). 

2

 Formula One Management Ltd. and Formula One World Championship (collectively “F1”). 

3

 As explained below, Nygaard seeks only reasonable royalty damages against Red Bull, not any 

other form of damages such as lost profits.

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analyze or offer any opinion about reasonable royalty damages against Red Bull based on this 

purported “media value” or anything else. 

 Given Nygaard’s decision to not include any damages claims against Red Bull in his 

expert reports, the Court should grant summary judgment of no damages against Red Bull and 

dismiss Red Bull from this case with prejudice. As explained below, Nygaard cannot carry his 

burden of proving damages against Red Bull using expert evidence or any other evidence. 

II. BACKGROUND FACTS

A. Red Bull’s Involvement With the Accused Halo and Aeroscreen, and 

Nygaard’s Allegations Against Red Bull

 Nygaard accuses the Halo and the Aeroscreen of infringing the patent-in-suit. (Nygaard

Third Amended Complaint (Dkt. 231) at ¶¶ 1, 267-69, 340-42.) 

For the Halo, Nygaard alleges that Red Bull Racing infringed because the Halo was 

installed on the two Red Bull Racing Formula One racing cars that competed at the U.S. Grand 

Prix in Austin, Texas in 2018, 2019 and 2021. (Id. at ¶¶ 333-39.) Nygaard also alleges that FIA 

and F1 induced Red Bull Racing and the nine other Formula One teams4

 to infringe at these U.S. 

Grand Prix races. (Id. at ¶¶ 266, 271-73, 288-91.) 

Since 2018, Red Bull Racing has been required by FIA technical regulations to use the 

Halo on its Formula One racing cars in order to compete in Formula One races. (Ans. of Def.

Red Bull To Third Amended Compl. (Dkt. 241) at ¶ 3; 11/12/21 Red Bull Interrog. Resp. No. 9 

(Ex. 1) at 9-12.) Red Bull did not make, sell or offer for sale the Halo; Red Bull Racing 

purchased its Halos from FIA-approved manufacturers in Europe for about each. 

4 The other nine Formula One teams include the Mercedes and Ferrari teams that the Court 

dismissed based on the “customer-suit exception.” (Order (Dkt. 182).) Red Bull did not seek 

relief based on the “customer-suit exception” but instead remained in this case to defend itself 

against Nygaard’s infringement claims for both the Halo and the Aeroscreen. 

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(Id.; see, e.g., Halo Invoices (Ex. 2).) 

For the Aeroscreen, Nygaard alleges that Red Bull Technology induced IndyCar and 

IndyCar teams to infringe by using the Aeroscreen on IndyCar racing cars during the 2020 and 

2021 seasons, because Red Bull Technology performed consultancy design work related to the 

Aeroscreen for IndyCar in 2019. (Dkt. 231 at ¶¶ 116-21, 123-29, 346-47, 350; 11/23/21 Red 

Bull Interrog. Resp. No. 3 (Ex. 3) at 8-12; 11/12/21 Red Bull Interrog. Resp. No. 4 (Ex. 4) at 12-

14.)5

Red Bull does not have an IndyCar team, so Red Bull has not used the Aeroscreen in the 

United States. (11/12/21 Red Bull Interrog. Resp. No. 6 (Ex. 1) at 16-17.) Red Bull also did not 

make, sell, offer for sale or import the Aeroscreen; Dallara did. (Id.; Dkt. 231 at ¶¶ 210, 215-21, 

343.) The only revenue related to the Aeroscreen that Red Bull received is the design 

consultancy fee that IndyCar paid Red Bull Technology in 2019 for its work related to the 

Aeroscreen. (11/12/21 Red Bull Interrog. Resp. No. 4 (Ex. 4) at 12-14.)6

Nygaard’s complaint does not specify the amount of damages that he seeks from Red 

Bull for either the Halo or the Aeroscreen. (Dkt. 231 at ¶¶ 351-52.) 

B. Nygaard’s Initial Disclosures, Interrogatory Response, and Deposition

Testimony Regarding the Damages He Seeks from Red Bull

Nygaard stated in his Rule 26(a)(1)(A) initial disclosures that he seeks reasonable royalty 

damages from Red Bull, but he did not specify the amount of damages. (3/29/21 Plaintiff’s Init. 

Disc. (Ex. 5) at 11-12.) Although Nygaard stated in his initial disclosures that he would 

5

 Nygaard also alleges that Red Bull Technology directly infringed by attending two IndyCar 

tests of the Aeroscreen in the U.S. in late 2019 and early 2020. (Dkt. 231 at ¶¶ 344, 349.) 

6

 The Court dismissed Dallara for lack of personal jurisdiction. (Mem. Opin. & Order (Dkt. 

225).) Nygaard did not sue IndyCar or any IndyCar teams (presumably because of venue 

concerns). Nygaard served a document subpoena on IndyCar (Ex. 6), but Nygaard never 

produced any documents from IndyCar. 

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“supplement within the time for expert reports,” he never supplemented or amended his initial 

disclosures. (Id. at 12.) 

Red Bull served an interrogatory seeking Nygaard’s damages contentions against Red 

Bull for both the Halo and the Aeroscreen, including the amount and type of damages he seeks, 

and how the Georgia-Pacific factors affect any reasonable royalty damages against Red Bull. 

(4/16/21 Red Bull Interrog. No. 3 (Ex. 7) at 6-7.) The interrogatory also asked Nygaard to 

identify all related documents. (Id. at 7.) 

After objecting that this interrogatory sought privileged information and “expert 

analysis,” Nygaard’s response stated that he seeks reasonable royalty damages from Red Bull 

“based on the value of [Nygaard’s] inventions as incorporated into the Halo and Aeroscreen and

open cockpit race cars, expert witness analysis and testimony.” (5/24/21 Plaintiff’s Interrog. 

Resp. No. 3 (Ex. 8) at 6.) However, Nygaard’s response did not specify the amount of these

reasonable royalty damages and it did not identify any documents. (Id. at 6-7.) Nygaard’s 

response also stated that he would identify documents pursuant to Rule 33(d) and that he would 

supplement his response after he received more discovery. (Id. at 7.) However, he never did 

either. 

At Nygaard’s deposition, after his counsel objected that the questions sought a “legal 

conclusion” and privileged information, Nygaard testified that he did not know the amount of 

damages he seeks from Red Bull: 

Q. Can you quantify the damages that you believe you have suffered as a result of

anything that Red Bull has done?

[Nygaard’s counsel]: I am going to object to the extent that that calls for a legal 

conclusion. You may answer the question, sir. 

A. Yes, I don’t know.

(9/20/21 Nygaard Dep. Tr. (Ex. 9) at 357:22-358:2.) 

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Q. Do you have an estimate in mind as to what you believe the damages have

been to you as a result of infringement by Red Bull?

[Nygaard’s counsel]: You may answer that question but in doing so you should 

not divulge or disclose any communications you have had with your lawyers, do 

you understand? 

A. Yes. I really don’t know.

(Id. at 358:8-15.) 

C. Nygaard’s Damages Expert Reports, Which Do Not Include Any Damages

Claims Against Red Bull

Nygaard served his three damages expert reports on December 24, 2021. (Stec Report

(Ex. 10); Szymanski Report (Ex. 11); McDonald Report (Ex. 12).) After forcing Red Bull to 

endure almost two years of burdensome and expensive litigation, Nygaard abruptly abandoned 

his damages claims against Red Bull in his expert reports by deciding to not include any opinions 

regarding damages against Red Bull for either the Halo or the Aeroscreen.

For the Halo, Nygaard’s lead damages expert Dr. Stec’s report first defines the “Halo 

Defendants” as FIA and F1, but not Red Bull,7

 and then explains that “[t]he following report 

contains my opinions as to the amount of economic damages caused to Nygaard by the Halo 

Defendants due to their alleged infringement.” (Ex. 10 at 1.) Dr. Stec sets forth his GeorgiaPacific reasonable royalty analysis for the “Halo Defendants” (FIA/F1) including a hypothetical 

negotiation between Nygaard and FIA/F1, and concludes that FIA/F1 and Nygaard would have 

agreed to a lump sum reasonable royalty of through expiration of the patentin-suit. (Id. at 3, 31-56.)8

 Dr. Stec’s reasonable royalty for FIA/F1 is based primarily on Dr. 

7

 Ex. 10 at 1 (“. . . Fédération Internationale De L’Automobile, Formula One Management Ltd., 

Formula One World Championship (collectively, ‘Halo Defendants’), Red Bull Technology 

Ltd., Red Bull Racing Ltd. (collectively ‘Red Bull’) (the Halo Defendants and Red Bull are 

collectively, ‘Defendants’) . . . .”) (emphasis added). 

8 Id. at 3 (“III. Summary of Opinions – Assuming that the Halo Defendants are found liable 

for damages resulting from its alleged infringement of the Patent-in-Suit, a lump sum royalty of

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Szymanski’s opinions regarding the purported “value” of the Halo to FIA/F1. (Id. at 33-37, 48-

55; Ex. 11 at 17-33.)9 However, Dr. Stec and Dr. Szymanski (and Nygaard’s other damages 

expert Dr. McDonald) do not analyze or offer any opinion about reasonable royalty damages 

against Red Bull, do not conduct a Georgia-Pacific analysis or any other reasonable royalty 

analysis for Red Bull, and do not include Red Bull in the hypothetical negotiation. 

For the Aeroscreen, none of Nygaard’s damages experts analyzes or offers any opinion 

about reasonable royalty damages at all, and none of them conducts any Georgia-Pacific analysis 

or any other reasonable royalty analysis. Dr. Szymanski sets forth his opinion that the “media

value” of the Aeroscreen is , based on 

 (Ex. 11 at 35-36 (citing Ex. 13 at 

36290).) However, none of Nygaard’s experts analyzes or offers any opinion about reasonable 

royalty damages against Red Bull based on this purported “media value” or anything else. 

After reviewing Nygaard’s damages expert reports, Red Bull reasonably concluded that 

Nygaard had abandoned his damages claims against Red Bull and had instead decided to pursue 

damages only from FIA and F1. On January 12, 2022, Red Bull’s counsel conferred with 

Nygaard’s counsel with a view to agreeing to a stipulated dismissal of Red Bull before the 

damages expert rebuttal report deadline on February 11, 2022. To Red Bull’s counsel’s surprise, 

Nygaard’s counsel insisted during the call that Nygaard had not abandoned his damages claims 

against Red Bull, and that he could still prove damages against Red Bull at trial. 

between is due to Nygaard. This royalty conclusion is based upon a 

hypothetical negotiation between Nygaard and the Halo Defendants in or around October 

2018.”) (second and third emphases added). 

9

 Although Dr. Szymanski sets forth his opinions regarding the purported “value” of the Halo to 

FIA/F1, he made clear that his report “does not attempt to capture the value of the Halo to a 

specific team” such as Red Bull Racing “in isolation from other teams because teams have 

different economic and business models from each other and from F1.” (Id. at 4.) 

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As explained below, notwithstanding Nygaard’s position, Nygaard cannot carry his 

burden of proving damages against Red Bull using expert evidence or any other evidence. 

Therefore, Red Bull now brings this motion. 

III. ARGUMENT

The Court should grant summary judgment of no damages against Red Bull and dismiss

Red Bull from this case with prejudice. As explained below, there is no genuine issue of 

material fact because Nygaard cannot carry his burden of proving any damages against Red Bull, 

for either the Halo or the Aeroscreen, using expert evidence or any other evidence. 

A. Summary Judgment of No Damages Against Red Bull Should Be Granted

Because Nygaard Cannot Prove Any Damages Against Red Bull

Summary judgment is warranted if there is no genuine issue of material fact and the 

moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 

317, 322-23 (1986). In particular, summary judgment is warranted if “the nonmoving party has 

failed to make a sufficient showing on an essential element of her case with respect to which she

has the burden of proof.” Id. at 323; see also id. (“[A] complete failure of proof concerning an 

essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”). 

The moving party meets its burden on a summary judgment motion by showing “that there is an 

absence of evidence to support the nonmoving party’s case.” Id. at 325. 

Nygaard bears the burden of proving reasonable royalty damages against Red Bull, 

including the amount of damages, with evidence. See Promega Corp. v. Life Techs. Corp., 875 

F.3d 651, 660 (Fed. Cir. 2017) (“In patent cases, the burden of proving damages falls on the

patentee, and the patentee must show his damages by evidence.”) (citations and quotations 

omitted); Lindemann Maschinenfabrik v. American Hoist & Derrick Co., 895 F. 2d 1403, 1406 

(Fed. Cir. 1990) (“The patentee must then prove the amount of damage.”). 

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As explained below, summary judgment of no damages against Red Bull is warranted 

because Nygaard cannot carry his burden of proving reasonable royalty damages against Red 

Bull using expert evidence or any other evidence. See TecSec, Inc. v. Adobe, Inc., 978 F.3d 

1278, 1291 (Fed. Cir. 2020) (“[T]here can be an award of no damages where none were 

proven.”) (citation and quotations omitted).

1. Nygaard Cannot Prove Damages Against Red Bull Using Expert 

Evidence

Nygaard cannot carry his burden of proving damages against Red Bull using expert 

evidence, because his expert reports do not include any opinions or analysis at all regarding 

damages against Red Bull for either the Halo or the Aeroscreen. 

As explained above in Section II.C, for the Halo, Dr. Stec analyzes and sets forth the 

reasonable royalty damages he says are owed by FIA and F1, but none of Nygaard’s experts 

analyzes or sets forth any opinion about reasonable royalty damages against Red Bull. And for 

the Aeroscreen, none of Nygaard’s experts analyzes or offers any opinion about reasonable 

royalty damages at all. Thus, none of Nygaard’s experts can testify at trial about reasonable 

royalty damages against Red Bull for either the Halo or the Aeroscreen. The jury in this case 

cannot determine reasonable royalty damages against Red Bull without expert testimony about 

how those damages should be determined. See, e.g., Exmark Mfg. Co. v. Briggs & Stratton 

Power Prods. Grp., LLC, 879 F.3d 1332, 1350 (Fed. Cir. 2018) (“When performing a GeorgiaPacific analysis, damages experts must not only analyze the applicable factors, but also carefully 

tie those factors to the proposed royalty rate.”); Promega, 875 F.3d at 660 (“[D]amages must not 

be left to conjecture by the jury. They must be proved, and not guessed at.”). 

Nygaard also cannot prove damages against Red Bull using any of the expert opinions or 

evidence that he did include in his expert reports. In particular, Dr. Szymanski’s opinion about 

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the purported “media value” of the Aeroscreen is not evidence of damages against Red Bull. 

The Supreme Court has “defined” infringement damages under 35 U.S.C. § 284 “as 

compensation for the pecuniary loss he [the patentee] has suffered from the infringement, 

without regard to the question whether the defendant has gained or lost by his unlawful acts.” 

Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 507 (1964) (citation omitted); 

see also Riles v. Shell Exploration and Prod. Co., 298 F.3d 1302, 1312-13 (Fed. Cir. 2002) 

(“Compensatory damages, by definition, make the patentee whole, as opposed to punishing the 

infringer.” (citing Aro, 377 U.S. at 507)). Therefore, even assuming for the purpose of this 

motion that Nygaard could prove that Red Bull actually did “gain” this purported “media value”

(which it did not), that “gain” to Red Bull would not be Nygaard’s “loss” or the damages that 

would compensate him. See Aro, 377 U.S. at 507. 

As explained above in Section II.C, none of Nygaard’s experts analyzes or offers any 

opinion about reasonable royalty damages against Red Bull based on this purported “media 

value” or anything else. In particular, none of Nygaard’s experts explain how Dr. Szymanski’s 

evidence about this purported “media value” is relevant to determining a reasonable royalty 

against Red Bull. The jury cannot determine reasonable royalty damages against Red Bull based 

on this “media value” evidence without expert testimony that explains how this evidence is 

relevant.10 See, e.g., Exmark, 879 F.3d at 1350; Promega, 875 F.3d at 660. 

This case is similar to another case before the Court, Daedalus Blue LLC v. SZ DIJ Tech. 

Co., No. 6:20-cv-00073-ADA. In Daedalus, after the Court excluded the plaintiff’s damages 

expert report, the Court canceled the trial and invited the defendant to file a motion for summary 

10 In fact, Dr. Szymanski’s “media value” opinion and related evidence are irrelevant, unreliable, 

unsupported, and should be excluded under Daubert and for other reasons, and Red Bull plans to 

move accordingly, if necessary. 

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judgment of no damages because the Court was not willing to let the plaintiff present a 

reasonable royalty damages case to the jury without a damages expert. (11/23/21 Hearing Tr. 

(Ex. 14) at 7 (“I’m not going to try a case where the plaintiff has no way of putting on a damages 

case.”); id. at 21 (inviting the defendant to file a summary judgment motion on the ground that 

“there are no damages”); see also id. at 3-7, 20-22.) 

In particular, the Court was not willing to permit the plaintiff to present a reasonable 

royalty damages case to the jury based on license agreements without a damages expert to 

explain “how the jury should consider these [agreements] and how they would impact a 

reasonable royalty.” (Id. at 6.) As the Court explained: 

The Court: So you have no witness who can tell the jury how to relate either of 

those licenses to any amount that you owe that you’re entitled to? You have no 

evidence?

[Plaintiff’s counsel]: Well, the license agreements speak for themselves about 

what [defendant] considered to be the appropriate amount of money – 

The Court: And what – and who on your side says what that – why that makes a 

difference and how the jury should take those into account in determining what 

amount of – what is the appropriate amount of damages? 

[Plaintiff’s counsel]: Well, I think, Your Honor, we can get it into evidence 

through their – again, through their 30(b)(6) and then argue it in closing to the 

jury in – 

The Court: No, no, no, no, no. You don’t get to argue it unless there’s evidence. 

Evidence that this has some – the only reason these licenses would be reasonable 

is in the context of a hypothetical negotiation where the jury could be told by an 

expert these are comparable licenses that the parties would have had and how they 

impact a reasonable royalty. You have none of that to put into evidence. 

(Id. at 5.) 

This case is similar to Daedalus. None of Nygaard’s experts can testify about reasonable 

royalty damages against Red Bull or how any other evidence (such as Dr. Szymanski’s purported 

“media value”) is relevant to determining reasonable royalty damages against Red Bull, because

their expert reports do not include any opinions about any of this. The difference is that, unlike 

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in Daedalus where the Court excluded the plaintiff’s damages expert’s opinions, here Nygaard 

voluntarily decided to not include these damages opinions against Red Bull in his expert reports. 

2. Nygaard Cannot Prove Damages Against Red Bull Using Other 

Evidence

 Nygaard also cannot carry his burden of proving damages against Red Bull by resorting 

to other evidence outside his expert reports, because Nygaard did not disclose any such other 

evidence during discovery. 

 As explained above in Section II.B, Nygaard’s initial disclosures and his damages 

contention interrogatory response did not disclose the amount of reasonable royalty damages he 

seeks from Red Bull. Nor did they disclose any other evidence based upon which Nygaard could 

prove reasonable royalty damages against Red Bull without expert testimony. Indeed, Nygaard’s 

interrogatory response did not identify any documents at all. And although Nygaard stated in his 

interrogatory response that he would identify documents under Rule 33(d) and supplement his 

response, he never did either. Nygaard also did not amend or supplement his initial disclosures. 

Nygaard cannot now rely on any new evidence that he did not disclose in his initial 

disclosures or interrogatory response. See, e.g., CQ, Inc. v. TXU Min. Co., L.P., 565 F.3d 268, 

279 (5th Cir. 2009) (affirming exclusion of damages evidence that was not disclosed in initial 

disclosures); MLC Intellectual Prop. LLC v. Micron Tech., Inc., 10 F.4th 1358, 1372-73 (Fed. 

Cir. 2021) (affirming exclusion of damages evidence that was not disclosed in interrogatory 

response); Fed. R. Civ. P. 26(e); Fed. R. Civ. P. 37(c)(1); see also Advisory Comm. Notes on 

1993 amendments to Rule 37(c) (describing Rule 37(c)(1) as a “self-executing . . . automatic 

sanction [to] provide[] a strong inducement for disclosure of material that the disclosing party 

would expect to use as evidence . . . .”). 

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Moreover, Nygaard cannot testify at trial about reasonable royalty damages against Red 

Bull. As explained above in Section II.B, Nygaard testified at his deposition that he did not 

know the amount of damages that he seeks from Red Bull. 

Again, Daedalus is similar to this case. There, the Court was not willing to permit the 

plaintiff to use other evidence to present a reasonable royalty damages case to the jury without a 

damages expert, where the defendant contended that this evidence had not been disclosed in the 

plaintiff’s initial disclosures, discovery responses, or deposition testimony. (Ex. 14 at 10-19.) 

* * * 

 In sum, there is no genuine issue of material fact because Nygaard cannot carry his 

burden of proving damages against Red Bull using expert evidence or any other evidence. Given 

Nygaard’s failure of proof, the Court should grant summary judgment of no damages against 

Red Bull for the Halo and Aeroscreen. See TecSec, 978 F.3d at 1291-92 (affirming judgment of 

no reasonable royalty damages where patentee did not prove damages); id. at 1291 (“[T]here can 

be an award of no damages where none were proven.”) (quotations omitted); id. (“‘[I]n a case 

completely lacking any evidence on which to base a damages award, the record may well support 

a zero royalty award.’”) (quoting Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1328 (Fed. Cir. 

2014)); Devex Corp. v. Gen. Motors Corp., 667 F.2d 347, 361 (3d Cir. 1981) (“In the absence of 

any evidence as to what would constitute a reasonable royalty in a given case, a fact finder would 

have no means of arriving at a reasonable royalty, and none could be awarded.”). 

B. Alternatively, Summary Judgment of Nominal Damages Against Red Bull 

Should Be Granted

Red Bull acknowledges that Section 284 provides for “damages adequate to compensate 

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

Nevertheless, as explained above, a court can and should grant summary judgment of no 

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damages in a case such as this one where the patentee fails to prove damages against the moving 

party. See, e.g., TecSec, 978 F.3d at 1291-92; Apple, 757 F.3d at 1328; Devex, 667 F.2d at 361. 

However, if for any reason the Court concludes that it must award Nygaard some amount 

of reasonable royalty damages against Red Bull, the Court should award nominal damages, i.e.

one dollar, because Nygaard cannot prove any other amount of damages, for all the reasons 

discussed above. See Apple, 757 F.3d at 1328 (“Certainly, if the patentee’s proof is weak, the 

court is free to award a low, perhaps nominal royalty, as long as that royalty is supported by the 

record.”) (citation omitted); AOS Holding Co. v. Bradford White Corp., No. 18-cv-00412, 2021 

WL 5411103 at *102-103 (D. Del. Mar. 31, 2021) (holding that section 284 “does not absolve a 

patentee of its obligation in litigation to meet its burden of proof” and awarding “only nominal 

damages of $1” because patentee failed to prove damages).

C. If Summary Judgment Is Granted, Red Bull Should Be Dismissed With 

Prejudice 

If the Court grants summary judgment, Red Bull should be dismissed from this case. 

Summary judgment of no (or nominal) damages would render pointless Nygaard’s underlying 

infringement claims against Red Bull for both the Halo and the Aeroscreen.11 Having 

voluntarily abandoned his damages claims against Red Bull in favor of pursuing damages only 

from FIA and F1, Nygaard should not be able to keep Red Bull in this case to litigate pointless 

infringement claims against Red Bull that cannot result in any damages against Red Bull. 

Moreover, the dismissal of Red Bull should with prejudice. See, e.g., Info-Hold, Inc. v. 

11 Nygaard does not credibly seek any other remedy against Red Bull. Nygaard’s complaint 

includes a boilerplate request for a permanent injunction against Red Bull and the other 

defendants. (Dkt. 231 at ¶ 419(c).) However, as an inventor who is not practicing his patent, 

Nygaard plainly cannot demonstrate that he has suffered an irreparable injury. See eBay Inc. v. 

MercExchange, LLC, 547 U.S. 388, 391-92 (2006). 

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Case 6:20-cv-00234-ADA Document 270 Filed 02/09/22 Page 17 of 20
Muzak LLC, No. 1:11-cv-00283, 2013 WL 6008619 at *3-4 (S.D. Ohio Nov. 13, 2013) (entering 

final judgment against patentee after granting summary judgment of no reasonable royalty 

damages), rev’d on other grounds, 783 F.3d 1365 (Fed. Cir. 2015).12 Dismissing Red Bull with 

prejudice is appropriate to account for the unnecessary burden and expense that Nygaard forced 

Red Bull to endure for almost two years before he abruptly abandoned his damages claims 

against Red Bull in his damages expert reports.

13 Moreover, a dismissal with prejudice will 

ensure that Nygaard cannot file a new lawsuit against Red Bull and try to fix his failure to prove 

damages in this case. See, e.g., Apple, Inc. v. Motorola, Inc., 869 F. Supp. 2d 901, 924 (N.D. Ill. 

2012) (dismissing patent case with prejudice after granting summary judgment of no damages 

because “[i]t would be ridiculous to dismiss a suit for failure to prove damages and allow the 

plaintiff to refile the suit so that he could have a second chance to prove damages.”), rev’d on 

other grounds, 757 F.3d 1286 (Fed. Cir. 2014). 

IV. CONCLUSION

 For the reasons set forth above, defendants Red Bull Racing Ltd. and Red Bull 

Technology Ltd. respectfully request that the Court: (1) grant summary judgment of no (or 

nominal) damages against Red Bull Technology Ltd. and Red Bull Racing Ltd.; and (2) dismiss

Red Bull Racing Ltd. and Red Bull Technology Ltd. from this case with prejudice.

12 By analogy, courts have granted summary judgment or dismissed with prejudice infringement 

claims under section 271(g) after concluding that no “remedies for infringement” were available 

because the safe harbor of section 287(b)(2) applied. See, e.g., Celanese Int’l Corp. v. Oxyde 

Chems., Inc., 554 F. Supp. 2d 725, 729-30 (S.D. Tex. 2008); Icon Laser Solutions, LLC v. 

Abercrombie & Fitch Co., No. 3:15-cv-03308, 2016 WL 7379138, at *3 (N.D. Tex. July 13, 

2016); cf. 35 U.S.C. § 287(b)(2) (“No remedies for infringement under section 271(g) shall be 

available with respect to ... .”). 

13 Cf. Kranz v. Midland Credit Mgmt., No. 18-cv-00169, 2020 WL 2326140, *3-4 (W.D. Tex. 

May 8, 2020) (court prepared to dismiss case with prejudice under Rule 41(a)(2) to avoid unfair 

prejudice given late stage of litigation pending for over two years). 

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Case 6:20-cv-00234-ADA Document 270 Filed 02/09/22 Page 18 of 20
Dated: February 2, 2022 Respectfully submitted,

By: /s/ Deron R. Dacus

Deron R. Dacus 

State Bar No. 00790553 

THE DACUS FIRM, P.C.

821 ESE Loop 323, Suite 430 

Tyler, TX 75701 

Phone: (903) 705-1117 

Fax: (903) 581-2543 

ddacus@dacusfirm.com 

/s/ Edgar H. Haug

Edgar H. Haug (pro hac vice) 

Mark A. Chapman (pro hac vice) 

Roman Khasidov (pro hac vice) HAUG 

PARTNERS LLP 

745 Fifth Avenue, 10th Floor 

New York, New York 10151 

Phone: (212) 588-0800 

Fax: (212) 588-0500 

Counsel for Defendants Red Bull 

Racing Ltd. and Red Bull Technology 

Ltd. 

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Case 6:20-cv-00234-ADA Document 270 Filed 02/09/22 Page 19 of 20
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing document and 

exhibits thereto have been served on all counsel of record via electronic mail on February 2, 2022. 

s/ Roman Khasidov _ 

Roman Khasidov 

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