Page:MGE UPS Systems Inc. v. GE Consumer and Industrial Inc. (5th Cir., 20 July 2010).djvu/9

No. 08-10521 2001 through 2004. GE/PMI contends that this chart includes undifferentiated gross revenue from servicing a variety of brands of equipment, not merely MGE equipment, and therefore does not reflect revenues “attributable to the infringement.”

“[O]nce liability has been shown, creates an initial presumption that the infringer’s ‘profits. . . attributable to the infringement’ are equal to its gross revenue.” Bonner v. Dawson, 404 F.3d 290, 294 (4th Cir. 2005) (alteration in original) (quoting 17 U.S.C. § 504(b)). “In meeting its initial burden, however, a copyright holder must show more than the infringer’s total gross revenue from all of its profit streams. . . . Rather, ‘gross revenue’ refers only to revenue reasonably related to the infringement.” Id. (emphases added); see also Davis, 246 F.3d at 159–60 (finding proffered evidence of defendant’s total gross revenues too broad to support a copyright infringement claim based on defendant’s use of plaintiff’s copyrighted eyeglasses in an ad campaign); Estate of Vane, 849 F.2d at 188, 190 (finding that “a lump sum figure for profits attributable to the television commercials that contained infringed material as a whole without accounting for the fact that the infringed material constituted only a fraction of any given commercial” was too speculative a connection to sustain damages); Taylor v. Meirick, 712 F.2d 1112, 1122 (7th Cir. 1983) (finding insufficient for § 504(b) purposes that plaintiff showed defendant’s gross revenues from the sales of all products instead of demonstrating gross revenues from sale of the infringing products).

MGE sought over $100 million in damages based almost exclusively on the testimony of its only damages expert, Dr. Laurance Prescott. Dr. Prescott’s testimony related to two damage models: (1) MGE’s lost profits; and (2) recovering a reasonable royalty. Notably, Dr. Prescott did not testify to GE/PMI’s profits attributable to the infringement. The district court carried 9