Patent Valuation Based on Cross-License Settlement Agreement Excluded

The court granted in part plaintiff's motion in limine to exclude the valuation of an agreement "which settled prior patent litigation under the [patent-in-suit] . . . and included non-exclusive, cross-licenses." "[Plaintiff] argues that the potential probative value of the . . . Agreement is dubious, since the agreement includes [plaintiff's] payments for the [cross-licensed] patents, rather than simply reflecting the economic footprint of the [patent-in-suit]. . . . [I]t does not appear that the [agreement] is uniquely relevant and reliable, not because it was arrived at in a litigation setting, but because it was arrived at by an effort to value cross-licenses. . . . The mere fact that it appears to be the only such license available does not justify its admission. . . . [Defendant] is free to make a proffer demonstrating that the [agreement] is in fact uniquely relevant and reliable, and the parties may refer to the fact that the [agreement] creating a cross-license arrangement, including use of the [patented] invention, exists, but the actual value of the license in that agreement is excluded."

Douglas Dynamics, LLC v. Buyers Products Company, 3-09-cv-00261 (WIWD April 4, 2014, Order) (Conley, J.)