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Rosco, Inc. v. Mirror Lite Co.
Citations: 626 F. Supp. 2d 319; 79 Fed. R. Serv. 1325; 2009 U.S. Dist. LEXIS 51033; 2009 WL 1689301Docket: CV-96-5658 (CPS)
Court: District Court, E.D. New York; June 17, 2009; Federal District Court
Rosco, Inc. initiated legal proceedings against Mirror Lite Company in 1996, alleging multiple claims including design patent infringement, trade dress infringement, and false designation of origin, while seeking damages and injunctive relief under 29 U.S.C. §§ 2201 and 2202. Mirror Lite counterclaimed for patent infringement. After a non-jury trial in March 2000, the court found that Rosco infringed Mirror Lite's '984 patent, leading to cross motions for summary judgment regarding Rosco's post-trial mirrors. The court granted partial summary judgment for Mirror Lite, confirming that two of Rosco's mirrors infringed, while indicating genuine factual disputes regarding three others. Ultimately, the court ruled that Mirror Lite is entitled to a reasonable royalty of $397,843.25 for Rosco's infringement but determined that mirrors 1, 2, and 5 did not infringe the '984 patent. Future and enhanced damages were denied. Mirror Lite's motions to strike certain evidences and testimony were denied, while its request for an amended permanent injunction was granted, excluding one specific paragraph. The procedural history outlined includes the details of both parties' patents, with Rosco's application for its '357 design patent in 1992 and Mirror Lite's application for the '984 utility patent in 1992, leading to their respective patent issuances in 1994 and 1996. Rosco sought a declaratory judgment against the validity of Mirror Lite’s '984 patent, while Mirror Lite countered by asserting Rosco's infringement of its patent. Rosco's '357 patent was deemed invalid as functional and obvious under 35 U.S.C. § 103 after a bench trial, and Mirror Lite's patent was found invalid under 35 U.S.C. § 102 (e) and (g), preventing a review of Mirror Lite's infringement claim. The Federal Circuit reversed these findings, remanding for consideration of several issues, including the validity of Rosco's patent and potential infringement by both parties. On remand, Mirror Lite conceded the validity of Rosco's patent, while Rosco argued that its prior mirror, the "Hawk Eye Mirror" (Exhibit 110), invalidated Mirror Lite's '984 patent under 35 U.S.C. § 102(a). Mirror Lite countered that Rosco could not prove the mirror had required features or prior public use. The trial court found that Exhibit 110 met the necessary criteria and invalidated Mirror Lite's patent due to inequitable conduct, as Mirror Lite failed to disclose prior art with intent to mislead the patent examiner. However, Rosco failed to substantiate its infringement claim against Mirror Lite's mirrors. On a second appeal, the Federal Circuit again reversed the trial court's anticipation finding regarding Exhibit 110, stating that Rosco did not provide corroborated evidence for its claims of invalidity. The Circuit Court also found insufficient evidence of intent to deceive concerning Mirror Lite's conduct. Subsequently, the trial court determined that Mirror Lite had proven Rosco's infringement of its '984 patent. Limited additional discovery was ordered on two issues: (1) the extent to which Rosco sold Hawk Eye and Mini Hawk Eye mirrors after the trial, and (2) the post-trial revenue, costs, and profits related to these mirrors. A permanent injunction under 35 U.S.C. 283 was granted to Mirror Lite, except for certain conditions, pending resolution of damages. Discovery was restricted concerning the period from December 31, 1996, to March 6, 2000, and inquiries into all mirrors were precluded. A factual finding was corrected to adopt a pre-trial sale figure of 90,000 infringing mirrors. Rosco claimed that some post-trial mirrors did not infringe due to a constant radius of curvature, but it was determined that Mirror Lite could investigate this claim while limiting discovery to prima facie infringing mirrors. Subsequently, both parties filed cross motions for summary judgment regarding the post-trial mirrors. Rosco contended that its mirrors did not infringe due to their constant radii, while Mirror Lite maintained that they infringed due to varying radii. Various evidentiary motions were filed, with Rosco's motion for summary judgment denied, and Mirror Lite's motion granted in part. Several motions to strike by both parties were addressed, with some granted and others denied. On July 13, 2007, Rosco requested a reexamination of the '984 patent with the USPTO and sought a stay of litigation, citing judicial economy and lack of undue burden on Mirror Lite. Mirror Lite opposed the stay, arguing it would be prejudiced, leading to the court's denial of Rosco’s request. Regarding damages, Mirror Lite seeks compensation for Rosco's infringement of the '984 patent, aiming to restore its position had the infringement not occurred. The measure of damages is defined as the difference in the patent owner's financial condition before and after the infringement, with two primary approaches for determining monetary awards: lost profit calculations and reasonable royalty calculations. To recover lost profits, a patentee must demonstrate a causal link between the infringement and the loss of profits, as established in BIC Leisure Prods. Inc. v. Windsurfing Int'l, Inc. If the evidence fails to establish causation for a portion of the infringer's sales, the court must determine a "reasonable royalty rate" under 35 U.S.C. § 284. The patent holder is also required to reconstruct the market to estimate the economic outcomes that would have occurred without the infringing product or to assess what a hypothetical royalty negotiation would have yielded. In this case, Mirror Lite sought to introduce pre-2000 evidence to supplement damages incurred post-March 2000, specifically to support claims related to price erosion and other damages. Rosco objected, citing previous court decisions that denied similar requests and arguing that Mirror Lite had opportunities to collect pre-2000 information during earlier discovery phases. Rosco claimed that allowing this evidence would prejudice them. In a prior ruling dated August 26, 2005, the court allowed limited post-trial damages discovery, specifically focusing on Rosco's sales of infringing mirrors and the related financials. However, the court restricted the scope of this discovery to exclude pre-trial damages. During the 2008 damages trial, both parties sought to introduce pre-2000 evidence, prompting the court to invite further briefing on whether to reopen damages discovery for that period. Mirror Lite argued that the evidence would support its claims of price erosion, asserting potential damages of at least one million dollars due to Rosco's actions that allegedly stifled its ability to raise prices. Mirror Lite's attempt to present additional evidence at trial was primarily aimed at substantiating a claim for lost profits, but it was concluded that Mirror Lite is entitled only to a reasonable royalty, rendering further evidence unnecessary. Specifically, while Mirror Lite wanted to submit evidence regarding price increases for cross view mirror assemblies prior to March 2000, the court declined to award price erosion damages, emphasizing that this information would not address the deficiencies in the lost profits claim. To recover lost profits, a patentee must demonstrate "but for" causation, establishing demand for the product, the ability to meet that demand, the absence of acceptable substitutes, and the profit that would have been realized without infringement. In a two-supplier market, the need to show demand and substitutes is reduced, focusing on the market's supplier count, the patent owner's capability, and lost profits. Mirror Lite failed to provide evidence of the profits it would have earned absent infringement at both trials, as its damages expert did not quantify any pre-trial profit losses, only suggesting a reasonable royalty. Consequently, lost profits could not be claimed for Rosco's pre-trial infringing sales. Furthermore, for post-trial infringement, it was determined that Rosco had acceptable non-infringing alternatives, which undermined Mirror Lite's ability to prove that it would have secured the sales that Rosco achieved. Although Mirror Lite argued that the market comprised only two suppliers, this did not prevent Rosco from introducing evidence against the existence of acceptable, available non-infringing alternatives. In Micro Chemical, Inc. v. Lextron Inc., the court examined lost profit damages, emphasizing that substantial evidence must support the claim, demonstrating a reasonable probability that the patentee would have made the sales lost to the infringer. The Lexalite mini hawkeye mirror, known as mirror 1, was developed and sold prior to the alleged infringement, meeting Federal Motor Vehicle Safety Standards (FMVSS 111) and achieving significant sales, thus qualifying as a non-infringing alternative under the Panduit test. While Rosco did not produce mirror 2, a Lexalite hawkeye, until 2005, the court found that it could have been manufactured and sold earlier, thus also qualifying as a non-infringing alternative. The evidence indicated that customers would have purchased mirror 2, which could also comply with FMVSS 111. Given the availability of acceptable non-infringing alternatives, the court concluded that Rosco's customers would not have turned to infringing products, negating Mirror Lite's claim for lost profits. Regarding reasonable royalty calculations, the court noted that if the patentee fails to prove lost profits, a reasonable royalty based on the Georgia-Pacific factors should be assessed. Mirror Lite proposed a royalty rate of $2.50 per mirror, while Rosco suggested $0.58. The court highlighted that Mirror Lite's established policy to maintain its patent monopoly increased the potential reasonable royalty rate, as it dominated 95% of the cross view mirror market at the time of infringement. The commercial relationship between Mirror Lite and Rosco is characterized by direct competition in a two-supplier market, which favors Mirror Lite in terms of a higher reasonable royalty rate. The licensing agreement allows Rosco to sell additional components related to the patented mirror assembly, which would result in lost sales for Mirror Lite, further supporting an increased royalty rate. As of the first infringement in December 1996, the '984 patent had roughly 16 years remaining, contributing positively to Mirror Lite's position. The product's established profitability is underscored by Rosco's significant increase in market share from 5% in 1993 to 45% in 2000, bolstering Mirror Lite's claim for a higher royalty. The patent's advantages are debated, with Mirror Lite citing a wider field of view as beneficial, while Rosco contends that compliance with federal standards negates this advantage. Nonetheless, the practical benefits of a wider view for drivers support Mirror Lite's stance. Rosco's sales of infringing mirrors from 1996 to 2005 aided in its market expansion, which also favors Mirror Lite's higher royalty claim. In discussing the portion of profit associated with the invention, Mirror Lite's expert suggests that Rosco risks losing all sales, which would elevate the royalty rate; however, this is countered by the existence of non-infringing alternatives, suggesting a lower royalty. Finally, Mirror Lite argues that customers seek the patented product specifically, which should increase the reasonable royalty rate, as Rosco could not have sold infringing mirrors without a license. Mirror Lite argues that Rosco would prefer to sell infringing mirrors and pay a royalty rather than forgo sales and risk losing market position. The author disagrees with Mr. Chase's analysis of pricing flexibility and reasonable royalty due to reliance on inaccurate data. However, the author agrees that Rosco would opt to negotiate a per lens fee to maintain its market share, thus supporting a higher reasonable royalty rate for Mirror Lite. Both parties' experts presented flawed hypothetical negotiations. Mr. Chase estimates a reasonable royalty of $2.50 per mirror, based on the assumption that all Rosco mirrors infringe and calculating Mirror Lite’s incremental profit per mirror. He posits that Rosco's argument to lower the rate would hinge on their low gross margins and that Mirror Lite would initially compromise significantly, settling at $2.50 due to Rosco's unsubstantiated cost deductions. Conversely, Mr. Gerardi, representing Rosco, proposes a significantly lower reasonable royalty of $0.58 per mirror, based on Rosco's design-around costs and specific calculations comparing manufacturing costs between infringing and non-infringing mirrors. He incorporates a one-time tooling cost of $150,000 distributed across the number of mirrors, arriving at a lower per-unit cost by analyzing the price differences for tinted and untinted lenses relative to their sales proportions. The analysis highlights significant discrepancies in the proposed reasonable royalty rates and the underlying assumptions of each expert. Mr. Gerardi allocated tooling costs of $26,250 for pre-trial mirrors and $70,000 for post-trial mirrors, which Rosco incurred for molds and equipment necessary for manufacturing non-infringing lenses. The court awarded Mirror Lite a reasonable royalty of $1.75 for each infringing mirror sold by Rosco, citing the case ResQNet.com, Inc. v. Lansa, Inc. as precedent. Both parties' negotiations contained flaws; Mirror Lite's were compromised by Mr. Chase's arbitrary deductions from Rosco's expenses, which lacked independent research to support claims about reasonable rent and salary allocations. The court found no basis for Mr. Chase's adjustments to Rosco’s expenses, including his reductions of salaries and other expenditures, which were merely subjective. Consequently, Rosco's negotiating position was stronger than Mirror Lite presumed, warranting a lower reasonable royalty award than proposed. Rosco argued that a reasonable royalty should be limited to its design-around costs, referencing cases where a non-infringing alternative was available at the time of infringement. However, the court noted that while a non-infringing alternative was developed later, there was insufficient proof of its availability at the time of first infringement. The court considered that Rosco would have preferred to infringe to maintain market share until a non-infringing product became available, indicating it would be willing to pay a reasonable royalty exceeding its design-around costs to sustain and grow its market presence. Mirror Lite holds a stronger negotiating position than Rosco anticipated, justifying a reasonable royalty higher than Rosco's proposal. A reasonable royalty rate of $1.75 per lens is awarded, representing the average of Mirror Lite's $2.50 proposal and Rosco's converted rate of $1.00 per lens. Rosco sold 90,000 infringing mirrors from 1996 until March 2000, and from March 2000 to December 31, 2006, sold an additional 137,339 units of mirrors 3 and 4, which infringe Mirror Lite's '984 patent. Rosco ceased selling mirrors 3 and 4 in 2004. The determination of damages for mirrors 1, 2, and 5 hinges on whether they infringe the '984 patent. Mirror Lite has filed motions to strike Rosco's evidence regarding the bisecting and template tests, as well as Professor Folan's testimony on patent matters. The court must assess the admissibility of this evidence based on legal standards. Mirror Lite argues that Professor Folan lacks the qualifications to opine on patent scope, while Rosco contends his expertise lies in physics and measurements. The court previously overruled multiple objections to Folan's testimony, clarifying that it would ultimately determine legal issues, including infringement, based on Folan's expertise in measurement rather than his opinions on patent validity or scope. Prof. Folan's expert opinions regarding the '984 patent are deemed admissible based on his expertise in optics, physics, and measurements. Mirror Lite filed a motion to strike evidence related to bisecting and template tests conducted by Rosco, arguing these tests fail to meet the admissibility standards established in Daubert v. Merrell Dow Pharmaceuticals, Inc. Mirror Lite contends that only evidence existing at the time of the Federal Circuit's mandate regarding pre-trial infringement should be considered, asserting that any new evidence is inappropriate. The court clarified that the current trial addresses post-trial infringement, allowing for the consideration of new tests. Mirror Lite's argument that only spherometer tests should be accepted was rejected, as the trial involves different issues than the previous one in 2000, specifically concerning damages. The court highlighted that appellate courts can only address issues presented during appeal and that the mandate did not restrict consideration of post-trial infringement evidence. Additionally, the court noted that infringement is within the scope of the initial discovery order and that evidence was necessary to evaluate claims regarding multiple mirror types sold by Rosco. Mirror Lite's previous motion to strike the bisecting test was denied, as the declaration from Peter Sinclair, an expert in mathematics, supported the test's admissibility under Daubert standards. However, Mirror Lite raised concerns about the absence of Sinclair as a witness at trial, which they argue undermines the foundation of the bisecting test. Ben Englander and Prof. Folan provided testimony regarding the bisecting test during Rosco's trial. Englander observed the test's execution by Mr. Sinclair, while Prof. Folan, an expert in measurement, optics, and physics, was qualified to explain the test results. Mirror Lite challenged the admissibility of the bisecting test under Daubert standards, which require a qualified expert and a reliable foundation for testimony. Prof. Folan’s qualifications met the first requirement, and the bisecting test aims to measure a radius of curvature, making his expertise relevant. The admissibility assessment followed Daubert's second step, focusing on the reliability of the expert's methods, which includes criteria such as testing of the theory, peer review, potential error rates, and general acceptance in the expert community. Englander’s observations supported the sound methodology of the bisecting test, while Prof. Folan confirmed the data’s reliability and addressed error potential linked to lens cutting and tracing. Mirror Lite failed to demonstrate that its expert could replicate the bisecting test or critique its methodology. Consequently, the bisecting test was deemed reliable and admissible. Similarly, Mirror Lite sought to strike the template test, arguing it did not meet Daubert standards. Englander testified on the template test's execution, and Prof. Folan evaluated its procedure and results. His expert opinion also confirmed the template test's sound methodology and reliability. Mirror Lite again could not show that its expert replicated the template test or evaluated its techniques and results. Therefore, the template test was also considered reliable and admissible. Additionally, Mirror Lite claimed that Rosco mirrors infringe upon its rights regarding the Lexalite-made Mini Hawkeye mirror. The Lexalite and Replex mirrors are alleged to infringe Mirror Lite's '984 patent due to their radii of curvature decreasing along the major axis from the intersection with the minor axis to the perimetral edge. In contrast, Rosco asserts that mirrors 1, 2, and 5 possess constant radii of curvature as described in three of its patents since 2001, claiming no infringement. The burden of proof for infringement rests on the patentee, requiring them to demonstrate that it is more likely than not that the accused mirrors infringe the patent, as established in Conroy v. Reebok Int'l, Ltd. Infringement analysis is a two-step process: first, the interpretation of the patent claims, which has previously been ruled upon in Rosco, Inc. v. Mirror Lite Co.; second, a comparison of the accused devices with the patent claims. Infringement is confirmed if all elements of the claims are present in the accused devices. The specific limitation in question is whether mirrors 1, 2, and 5 have a varying radius of curvature as defined by the '984 patent. The court finds that Mirror Lite has not sufficiently proven that these mirrors have a varying radius of curvature, leading to the conclusion that they do not infringe the patent. During the trial, Mirror Lite presented spherometer tests conducted by Prof. Howell as evidence of infringement, but Rosco contested the reliability of this evidence under Federal Rule of Evidence 702, arguing that Howell's conclusions lacked a factual basis and failed to control for known errors. The reliability of expert testimony requires both an assessment of the expert's qualifications and the soundness of their methodology. Federal Rule of Evidence 702 allows expert witnesses to testify if their specialized knowledge aids in understanding evidence or determining facts, provided their testimony is based on sufficient data, utilizes reliable principles and methods, and applies those methods reliably to the case facts. Prof. Howell, an expert in mechanical engineering, conducted tests using a spherometer to measure the radius of curvature of mirrors. His methodology was deemed reliable; however, he failed to control for potential errors arising from human interaction and the device’s mechanical construction. Consequently, it was concluded that Mirror Lite did not meet the burden of proof for patent infringement concerning mirrors 1, 2, and 5. The spherometer's accuracy can be compromised due to operator errors, such as improper positioning of its legs or center post, slight hand movements, or tilting, leading to inconsistent pressure and inaccurate readings. Securing the mirror is crucial to prevent movement during measurement. Prof. Howell tested each mirror twice, first using a grid to identify the major axis and then marking it for the second test. Both tests revealed a decrease in radius along the major axis for each mirror. Prof. Howell noted a decrease in each mirror's radius of curvature along the major axis. Prof. Folan criticized Howell's spherometer testing method, arguing that it lacks reliability due to its subjective nature, particularly the "eyeballing" technique used to identify the major axis. He pointed out that proper use of the spherometer requires a specific viewpoint that makes it difficult to see both the dial and the axis simultaneously. Howell's method also lacked precautions to ensure vertical instrument positioning and consistent pressure, which affect the weight of his testimony but do not inherently render the results unreliable. Notably, Howell did not record any measurements or the extent of the radius of curvature decrease for the mirrors tested. Mirror Lite contended that such records were unnecessary since the patent claims only required a general decrease in curvature without quantification. While the claims do not specify a precise decrease, the absence of recorded results raises questions about the credibility of Howell's findings, particularly given discrepancies between his deposition and trial testimony regarding the observed decrease. The five mirrors introduced by Mirror Lite showed scratches that Howell could not explain, which, according to Ben Englander, could not have been made without significant pressure, suggesting possible inconsistencies in Howell's testing. Prof. Howell testified at trial regarding the radius of curvature in Rosco's vacuum formed mirrors, noting a 0.015 inch decrease, with lesser reductions in other types of mirrors. His rebuttal testimony indicated a decrease of "a few thousandths" of an inch, later refined to a range of 0.001-0.004 inches. The reliability of Howell's results was questioned due to inconsistencies in his testimony, lack of recorded data, and challenges in accurately conducting the spherometer test, particularly the requirement to hold it perpendicular to the mirror's surface while moving it, which could introduce errors. Consequently, the results were deemed insufficient for Mirror Lite to prove infringement of the '984 patent. In terms of damages, Rosco sold a total of 227,339 infringing mirrors, leading to an award of $397,843.25 for Mirror Lite at a reasonable royalty rate of $1.75 per mirror. Mirror Lite also sought lost profits on convoyed sales related to unpatented items sold with the patented product, which the court acknowledged as a factor in determining the royalty rate. However, Mirror Lite was not entitled to an additional award for lost convoyed sales. For claims of price erosion, the court noted that to recover lost profits, there must be substantial evidence demonstrating that Rosco's infringement affected the market price of Mirror Lite's products. Given that both companies competed directly in a two-supplier market, Mirror Lite needed to provide evidence linking any price reductions to Rosco's infringing sales. Mirror Lite's claim for damages due to price erosion resulting from Rosco's market presence is deemed speculative and insufficient for lost profit recovery. Mirror Lite asserted that without Rosco, it would have controlled approximately 95% of the market and could have charged higher prices. However, the evidence did not convincingly show that the market would have accepted such price increases, as corroborated by testimony indicating that increased prices led to a loss of customers and OEMs' reluctance to purchase. Consequently, Mirror Lite cannot recover damages for price erosion. Regarding future damages, a patent holder can claim compensation for lost future sales attributable to past infringement if sufficiently supported. This principle was illustrated in cases like Brooktree Corp. v. Advanced Micro Devices, where the patentee projected future losses based on past sales data. In a similar context, the court accepted expert projections of future sales lost due to a competitor's introduction of a similar product that harmed the patentee's sales momentum and goodwill. The Federal Circuit also recognized the validity of using pre- and post-infringement growth rates to establish lost sales in a two-supplier market. Despite these precedents, Mirror Lite did not provide evidence of its potential market share had the infringement not occurred, further undermining its claims. Mirror Lite failed to provide evidence on market impacts following Rosco's introduction of a non-infringing alternative in 2000, resulting in the denial of future damages. The court addressed Mirror Lite's request for enhanced damages due to alleged willful infringement of the '984 patent by Rosco. While the court recognizes its discretion in awarding enhanced damages, it concluded that Rosco did not willfully infringe the patent, as there was no objective recklessness in its actions. Rosco only sold infringing mirrors when it was found to hold a valid patent, and it ceased selling these mirrors before the court's determination that it was the infringer. The court found that, after a bench trial, Rosco's '372 patent was invalid, and it subsequently infringed Mirror Lite's '984 patent, but only mirrors 1, 2, and 5 were sold post-infringement ruling, which do not infringe on the '984 patent. Mirror Lite was awarded $397,843.25 in total damages for pre-trial and post-trial infringement, while its requests for future and enhanced damages were denied. Additionally, Mirror Lite's motions to strike certain evidence and testimony were denied, and it was granted an injunction, subject to specific exceptions. Mirror Lite may apply for attorney's fees within 14 days, and the clerk will notify all parties involved. Mirror Lite filed a motion for summary judgment on November 10, 2006, claiming that five mirrors produced by Rosco infringed the '984 patent. The court found that two specific models—the Replex vacuum-formed Mini Hawkeye mirror and the Replex vacuum-formed Hawkeye mirror—did infringe the patent, while it denied summary judgment for the three other models: the Lexalite injection-molded Mini Hawkeye mirror, the Lexalite injection-molded Hawkeye mirror, and the Replex thermo-molded Hawkeye mirror. The court noted that if any of the three non-infringing mirrors were later determined to infringe, it would also need to assess how many were sold by Rosco. The text references several sections of the U.S. patent law: 35 U.S.C. 103, which addresses the obviousness of a patent; 35 U.S.C. 102(e), concerning prior patents; 35 U.S.C. 102(g), regarding prior inventions by other inventors; and 35 U.S.C. 102(a), which pertains to prior knowledge or use of the invention. Additionally, the Patent and Trademark Office (PTO) reexamined the '984 patent upon Rosco's request and confirmed its patentability on November 26, 2008. For determining a reasonable royalty rate for the infringement, the court will consider factors outlined in Georgia-Pacific Corp. v. United States Plywood Corp., which includes royalties received by the patentee, rates paid for comparable patents, nature of the license, the licensor's marketing policies, and the commercial relationship between the licensor and licensee, among others. Key points include the considerations for evaluating damages in patent infringement cases, focusing on the impact of the patented specialty on the sales of other products, the value of the invention to the licensor, and the duration of the patent and licensing agreement. Factors such as the profitability, commercial success, and current popularity of the patented product, along with its utility compared to prior devices, are critical. The nature of the invention and its commercial embodiment, as well as the extent of the infringer's use and the value of that use, are also pertinent. Additionally, customary profit portions related to the use of the invention and how much of the profit can be attributed specifically to the patented invention versus non-patented elements are vital. Expert testimony and the hypothetical royalty agreement between a prudent licensor and licensee at the time of infringement are also considered. In the case of Mirror Lite, a motion to introduce pre-2000 evidence for post-2000 damages was denied, as no supporting case law was cited. Consequently, any new information presented by Rosco from that earlier period was also disregarded. Mirror Lite acknowledged a lack of evidence for pre-trial infringing mirrors and sought damages based on a reasonable royalty. Rosco's damages expert mentioned competitors but only referenced their status in 1992, failing to provide proof of their market presence in the relevant period starting December 31, 1996. Additionally, the non-infringing alternative, the Rosco integra mirror, was deemed unsuitable for regular buses. Mr. Chase calculated Rosco's incremental profit per mirror at $7.84, which Rosco disputes. Mr. Chase relies on a figure of $7.16, arguing that using Rosco's incremental profit aligns with a lost profit analysis; however, this is based on the incorrect assumption that all post-trial mirrors infringe, which would allow Rosco to negotiate a lower reasonable royalty rate. The document provides a breakdown of costs for various lenses, with the average cost per unit for tinted and untinted lenses listed, and notes the unclear allocation of tooling costs due to Rosco's redaction of expenditure details. There is testimony indicating that technology for non-infringing alternatives was available since 1992, but Rosco opted for Lexalite in 1999 for this purpose, raising questions about the timeline for producing these lenses. Rosco's proposed reasonable royalty rate of $1.00 per lens is calculated by dividing total design around costs and tooling costs by the number of infringing mirrors. Previous decisions have established the validity and scope of the '984 patent, and limited discovery was ordered regarding Rosco's sales and profits from the Hawk Eye mirrors post-trial. Mirror Lite's late argument regarding the doctrine of equivalents is dismissed as untimely. The two infringement tests employed by Rosco, the mirror bisecting test and the template test, are detailed in earlier opinions. Additionally, the document describes the function and calibration of a spherometer, used for measuring surface curvature. The spherometer is utilized to measure deflection by placing it at the intersection and moving it along the major axis to the edge of the lens, with readings displayed on the instrument. Key terms are defined: "accuracy" refers to being free from error or defect, while "precision" indicates having specific limitations. Prof. Howell conducted tests on 24-30 additional mirrors after his deposition, but the results were not presented at trial. The court concluded that Mirror Lite failed to demonstrate infringement based on the spherometer tests, which did not establish that infringement was more likely than not. Consequently, there was no need to evaluate Rosco's Template and Bisecting Tests. Additionally, projected lost profits for Lam pertained to damages accruing after the lawsuit was filed and before the final ruling.