On January 29, two opinions from two jurisdictions denied motions to exclude reference to settlement agreements.  In the NDCA, in Open Text S.A. v Box, Inc., Case No. 13-cv-04910-JD,Judge Donato denied a motion by plaintiff to exclude defendant’s expert’s opinions regarding four settlement agreements the defendant’s expert opined were comparable.  In a nutshell, plaintiff argued that the agreements were depressed in value because they were settlements, but the Court disagreed, and held it was subject matter for cross-examination: “The differences between the Box licenses and the hypothetical negotiation that Open Text points to (like the timing of the licenses, or the fact that the patent office had issued a non-final rejection of the licensed claims in one of the licenses) would be easily understandable to a jury.”

On the opposite end of the spectrum, in the EDTX, in Rembrandt Wireless Techs. v. Samsung, Judge Payne denied a motion by defendant to exclude plaintiff’s expert’s opinions on a settlement agreement.  Defendant’s believed that the expert’s per-unit allocation of a royalty was improper, and that the expert’s increase of the hypothetical negotiation rate because of the settlement’s “additional litigation risk” was also flawed.  The Court noted that the settlement was arguably “the only license that includes the patents-in-suit,” giving it particular significance.  Similar to the NDCA opinion, Judge Payne observed that the defendants were free to challenge the expert “through vigorous cross-examination.”