Fees Defendant Paid Litigation Counsel and Expert Witnesses Relevant to Reasonable Royalty Calculation

The court denied defendant's motion in limine to preclude plaintiffs from comparing defendant's reasonable royalty calculation to the fees defendant incurred for litigation counsel and expert witnesses. "Plaintiffs argue that the amounts of money Defendant was willing to pay its expert witness and its counsel are relevant to the value that Defendant attaches to the subject matter of the Patents-in-Suit and its [accused] System and, thus, are relevant to the calculation of a reasonable royalty. . . . The Court finds that the challenged evidence is relevant to the value the alleged infringer places on the ability 'to obtain a license to manufacture and sell a particular article embodying the patented invention,' as stated in Georgia-Pacific factor fifteen. . . . [P]ost-hypothetical negotiation information regarding the amount of money spent to investigate and defend the ability to continue to market the accused product without obtaining a license is relevant to the calculation of a reasonable royalty and may be presented to the jury."

Ecolab USA, Inc., et al v. Diversey, Inc., 0-12-cv-01984 (MND May 15, 2015, Order) (Nelson, J.)