merous features not found in Word, but, strangely, does not practice the patented invention. But see Crystal Semiconductor, 246 F.3d at 1357 (affirming exclusion of “benchmark” even where expert selected “product similar to the patented prod- uct” where there remained “several important” differences in the markets for the two products).
*** This case is symptomatic of the new wave of patent litigation where aggres- sive plaintiffs substitute purported “expert” testimony for actual evidence and seek lottery-like verdicts without any connection to the real world. The Georgia-Pacific framework is intended to ensure that royalty damages both fulfill the Patent Act’s mandate of “reasonableness” and bear some rational connection to commercial transactions that might actually be entered into by the parties. The jackpot justice rendered by the jury in this case is neither reasonable nor rational, and reflects the absence of the judicial safeguards against unreliable expert testimony mandated by the Supreme Court in Daubert, Joiner, and Kumho Tire, and codified in Rule 702.
If Mr. Wagner’s “baseline royalty” analysis “satisfie[s] Rule 702 and Daubert,” as the panel decision held, then the very clear message to trial courts with respect to patent damages experts is: “anything goes.” En banc review is war- ranted to curb the plague of unreliable “expert” opinions that threaten the reason- ableness and rationality of our patent damages system. After this Court took steps in Lucent to rectify damage awards that have run amok, the decision here risks re-