To qualify as an acceptable non-infringing substitute, a product or process must be “available or on the market at the time of infringement.” Grain Processing Corp. v. Am. Maize-Prod. Co., 185 F.3d 1341, 1348 (Fed. Cir. 1999); see also TQP Dev., LLC v. Merrill Lynch & Co., 2012 WL 3283354, at *1 (E.D. Tex. Aug. 10, 2012) (Bryson, J., sitting by designation) (considering non-infringing alternatives in the reasonable-royalty context).

An alternative must also be “available” to the defendant at the time of the alleged infringement. To constitute a non-infringing alternative, the proposed alternative must either have been (1) “on the market” or (2) otherwise “readily available” to the infringer during the infringement period. See Micro Chem., Inc. v. Lextron, Inc., 318 F.3d 1119, 1122 (Fed. Cir. 2003) (quotation marks omitted). “In determining whether the alternative product is available, the court may consider whether (1) the defendant could readily obtain all of the material needed to implement the non-infringing alternative; (2) the non-infringing alternative was well known in the field at the time of infringement; and (3) the defendant had all of the necessary equipment, know-how, and experience to use the non-infringing alternative.” TQP Dev., LLC v. Merrill Lynch & Co., No. 08-471, 2012 WL 3283354, at *1 (E.D. Tex. Aug. 10, 2012) (quotation marks omitted). And when a substitute is “not actually sold during the period of infringement

He also does not cite any peer-review journal or similar authority establishing that standard industry practice requires performing these types of calculations only in the manner Koenig proposes. Also absent from this portion of Koenig's motion is any convincing argument that Cox's underlying assumptions are impermissibly speculative or unsupported by the available evidence. See TQP Dev., LLC v. Merrill Lynch & Co., Inc., No. 2:08-CV-471-WCB, 2012 WL 3283356, at *2 (E.D. Tex. Aug. 10, 2012) (noting, "experts are allowed to rely on assumptions as part of their opinions, as long as those assumptions are supported by evidence at trial"). In light of the above, Koenig's objections to Cox's momentum analysis are insufficient to warrant excluding Cox's testimony, and any complaints about assumptions underlying Cox's calculations go to the weight of his testimony, rather than its admissibility.

Rather, Samsung is entitled to demonstrate that an acceptable non-infringing alternative was "available," even if it was not actually being sold at the time of infringement. See, e.g., Grain Processing Corp. v. Am. Maize-Prods. Co., 185 F.3d 1341, 1351-52 (Fed. Cir. 1999); TQP Dev., LLC v. Merrill Lynch & Co., No. 08-471, 2012 WL 3283354, at *1 (E.D. Tex. Aug. 10, 2012) ("In determining whether the alternative product is available, the court may consider whether (1) the defendant could readily obtain all of the material needed to implement the non-infringing alternative; (2) the non-infringing alternative was well known in the field at the time of infringement; and (3) the defendant had all of the necessary equipment, know-how, and experience to use the non-infringing alternative."). Because an acceptable non-infringing alternative need not be a product that was actually on the market at the time of infringement, the fact that the Samsung products infringed some of Apple's patents does not preclude Samsung from arguing that the non-infringing aspects of these products provide evidence that Samsung could have offered a fully non-infringing product that would have been an acceptable non-infringing alternative.

Rather, Samsung is entitled to demonstrate that an acceptable noninfringing substitute was "available, " even if it was not actually being sold at the time of infringement. See, e.g.,Grain Processing Corp. v. Am. Maize-Prods. Co., 185 F.3d 1341, 1351-52 (Fed. Cir. 1999); TQP Dev., LLC v. Merrill Lynch & Co., No. 08-471, 2012 WL 3283354, at *1 (E.D. Tex. Aug. 10, 2012) ("In determining whether the alternative product is available, the court may consider whether (1) the defendant could readily obtain all of the material needed to implement the non-infringing alternative; (2) the non-infringing alternative was well known in the field at the time of infringement; and (3) the defendant had all of the necessary equipment, know-how, and experience to use the non-infringing alternative." (internal quotation marks omitted)).