• Joint Defense Group
  • Reasonable Royalties

Ultimate Pointer v. Nintendo Corp., et al.

Thomas Britven was asked to serve in an expert witness capacity by counsel for Nintendo as well as multiple retail defendants, including Wal-Mart and Best Buy in a patent-infringement matter implicating the Nintendo Wii console and over 2,000 Wii games. Mr. Britven addressed Plaintiff Ultimate Pointer’s claim of damages stemming from Nintendo’s alleged infringement of two patents claiming direct pointing technology. Mr. Britven noted that a proper apportionment should consider technical as well as qualitative factors unrelated to the patents-in-suit that contributed to the accused sales.

The Court ruled in favor of Nintendo on its motion for summary judgment just prior to trial. The ASQ team, including Mr. Britven, Douglas Ellis, Ryan LaMotta, and Lauren O’Shea, played a significant role in assisting counsel in the development of arguments and demonstratives for the summary judgment hearing. The team was also successful in helping counsel secure other rulings; including a ruling where the judge issued an “order granting motion to exclude testimony of” the plaintiff’s damages expert.

Ultimate Pointer’s challenge of Mr. Britven’s work was soundly rejected by U.S. District Judge Robert S. Lasnik, who noted that Mr. Britven’s “testimony is reliable and will be helpful to the jury as it attempts to apportion damages between unpatented and patented features of the Wii system.” Mr. Britven’s practical and intuitive approach to apportionment was also upheld by the Court. To this end, the Court ruled “Mr. Britven’s opinion is helpful in understanding Nintendo’s hypothetical negotiating position, namely that some portion of the retail price attributable to defendants’ market share, brand recognition, reputation, retail network, etc., should be walled off from any royalty calculation as unrelated to plaintiff’s technical contribution. The testimony is both reliable and helpful in that context.”


On appeal, the CAFC agreed with the trial judge’s claim construction and affirmed the non-infringement judgment.