Evidence of More Than 1,000 Pre-Litigation Licenses May Show Established Licensing Program, Obviating Need for Individualized Comparability Analysis and Apportionment

The court denied in part defendant's motion in limine to preclude plaintiffs from presenting evidence of more than 1,000 pre-litigation licenses under the MPEG standards because the number of third party licenses was relevant under FRE 401 to issues other than infringement. "[E]vidence of plaintiffs' licenses with third parties, including the number of licenses, is relevant to damages, validity, willfulness, and in responding to claims that plaintiffs are litigious. . . . [E]vidence of plaintiffs' third-party licenses, including the number of such licenses, is relevant to the issue of damages as it relates to the issue of general acquiescence and an established royalty. . . . [I]f plaintiffs can show an established licensing program, a separate comparability analysis for each license entered into pursuant to that program is not necessary and concerns regarding apportioning value to account only for the value of the patents-in-suit will be an issue for the jury. . . . [Defendant's] attacks on the comparability of the 1,000 plus third-party licenses, including that the licenses cover patents other than the patents-in-suit and that [defendant's] circumstances differ from the third-party licensees, go to the weight to be accorded the evidence, not its admissibility."

Audio MPEG, Inc. et al v. Dell, Inc., et al, 2-15-cv-00073 (VAED October 6, 2017, Order) (Krask, MJ)