Hypothetical Negotiation May Not Account For “Doubts” About Validity

The court granted in part plaintiff's motion in limine to exclude the opinion of defendant's damages expert that "doubts about the validity of the patent" created downward pressure on the royalty rates. "Under established law, the hypothetical negotiation approach 'assumes that the asserted patent claims are valid and infringed.' None of the Georgia-Pacific factors includes doubts about the validity of the patent. . . . [Defendant] has not cited a case that has held that this factor allows an expert to doubt the presumption that the patent is 'unquestionably valid and enforceable.'"

Metris USA, Inc., et. al. v. Faro Technologies Inc., 1-08-cv-11187 (MAD June 29, 2012, Order) (Saris, J.).