On May 15, 2015, a court in the District of Minnesota denied defendant’s motion in limine to exclude evidence of the amounts defendant paid to its opinion counsel, experts, and trial counsel. The plaintiffs argued that the amount of money the defendant was willing to pay its expert witnesses and attorneys was relevant to the calculation of a reasonable royalty, and the court agreed. Specifically, the court found that “post-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.” In reaching this conclusion, the court relied on Georgia-Pacific factor 15, which relates to the value a patentee and accused infringer would place on granting or obtaining a hypothetical license. In addition, the court equated the challenged evidence to other post-hypothetical negotiation information that the defendant had argued was relevant, namely, the profitability of the accused device and the extent of the alleged infringer’s sales.

Ecolab USA Inc. v. Diversey, Inc., 12-CV-1984 (D. Minn. May 15, 2015) (Nelson, S.).