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the reliability of Mr. Wagner’s “explication” runs headlong into the Supreme Court’s warning in Joiner that courts ought not “admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” 522 U.S. at 146. It is courts—not the experts themselves—that must assess whether an expert’s “methodology properly can be applied to the facts in issue,” Daubert, 509 U.S. at 593, and ensure that “experts’ opinions [a]re sufficiently supported by the . . . stud- ies on which they purported to rely,” Joiner, 522 U.S. at 144.2

There is nothing in the decision to suggest that the panel ever analyzed, much less independently concluded, that Mr. Wagner “applied” his baseline roy- alty rate methodology “reliably to the facts of the case.” Fed. R. Evid. 702 (em- phasis added). To the extent the decision discusses the $96 “baseline royalty rate” at all, it does so only by reciting Mr. Wagner’s “explication”: “Wagner testified that the 25-percent rule was ‘well-recognized’ and ‘widely used’ by people in his field,” and “Wagner explained that he chose XMetaL [as a benchmark] because it was the product Microsoft bought and used before developing its own custom XML editor . . . .” Slip op. 29, 31-32. Missing from the decision is any independ- ent judicial analysis of the obvious and unbridgeable “analytical gap” between Mr. Wagner’s data and his conclusion that Microsoft would have started the hypotheti-

2 This Court’s decision in Micro Chemical, Inc. v. Lextron, Inc., 317 F.3d 1387 (Fed. Cir. 2003), of course, is not to the contrary. In that case, this Court held that a trial court need not resolve “conflicting sets of facts” relied upon by parties’ du- eling experts. Id. at 1392. Here, however, Microsoft challenged Mr. Wagner’s baseline royalty analysis not on the ground that the data he used—XMetaL’s list price and Microsoft’s profit margin for Word products—were incorrect as a factual matter, but rather, as in Joiner, on the ground that there was “too great an analyti- cal gap between the data and the opinion proffered.” 522 U.S. at 146.


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