Monday, March 8, 2010

Evidence Of Litigation-Induced License Agreements Should Not Be Excluded From Trial

The court denied defendants' motion in limine to "preclude Plaintiff from offering evidence of litigation-induced licensing agreements, including any related consent decrees and judgments as well as communications related thereto, as evidence of the value of the patents-in-suit, whether pertaining to a ‘reasonable royalty’ analysis or as alleged ‘secondary considerations’ of nonobviousness and/or commercial success." "In light of [, Inc. v. Lansa, Inc., --- F.3d ----, 2010 WL 396157 (Fed. Cir. 2010)], litigation-related licenses should not be excluded from the . . . trial in the above-captioned case. Although ResQNet involved a bench trial, the licenses at issue were considered by that trial court sitting as trier of fact, just as the jury will sit in the above-captioned case. Defendants’ concerns about the reliability of litigation-related licenses are better directed to weight, not admissibility. . . . Defendants (as well as Plaintiff) may nonetheless propose a final jury instruction that gives the jury guidance on applying litigation-related licenses."

Datatreasury Corporation v. Wells Fargo & Company et al., 2-06-cv-00072 (TXED March 4, 2010, Order) (Folsom, J.)

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