Damages Experts Face a Harder Gate — EcoFactor, Inc. v. Google LLC

Damages Experts Face a Harder Gate — EcoFactor, Inc. v. Google LLC

^{October 27, 2026 | Intellectual Property News, Legal News}

Decision: EcoFactor, Inc. v. Google LLC, 137 F.4th 1333 (Fed. Cir. 2025) (en banc) — U.S. Court of Appeals for the Federal Circuit, decided May 21, 2025.

The holding. In a rare en banc decision — the court’s first in a utility-patent case since 2018 — the Federal Circuit vacated a jury’s award of more than $20 million against Google and ordered a new trial on damages. EcoFactor’s damages expert had testified that prior licensees had agreed to a per-unit royalty, and built his reasonable-royalty opinion on that rate. The problem was in the documents themselves: the three licenses he relied on were lump-sum agreements, and two of them expressly stated that the lump sum was not based on sales or indicative of a per-unit rate. The rate appeared only in one-sided recitals stating EcoFactor’s own belief. The court held that where the evidence contradicts a critical fact the expert relied on, the trial court fails its gatekeeping duty under Federal Rule of Evidence 702 by letting the expert testify. Reliability of the expert’s basis is a question of admissibility, not merely of weight for the jury.

What it means. EcoFactor raises the bar for damages proof in patent cases, and it cuts both ways. Patent owners can no longer count on getting a royalty opinion to the jury simply because an expert is willing to state it; the opinion must be anchored in facts the record actually supports, and the other side will read the underlying licenses closely. Accused infringers, meanwhile, have a stronger Daubert weapon — and a real prospect of a new trial, rather than just a remittitur, when an expert’s foundation collapses. The decision also matters at the front end of a case: damages experts should be retained early, their royalty theories should be tested against the actual license language before the report is written, and settlement licenses should be drafted with an eye to how their terms will read in a future damages fight.

Sources:

• Opinion: EcoFactor, Inc. v. Google LLC, 137 F.4th 1333 (Fed. Cir. 2025) (en banc)
• Also consulted: Venable LLP, “Federal Circuit Issues Rare En Banc Decision on Patent Damages” (May 27, 2025); Fish & Richardson, “The Federal Circuit Continues to Evolve Its Daubert Gatekeeping Framework: Willis and Exafer” (2026)