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EDTX Excludes Evidence of Party’s Actual Behavior at Hypothetical Negotiation

October 18, 2017

EDTX Excludes Evidence of Party’s Actual Behavior at Hypothetical Negotiation

October 18, 2017

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The Eastern District of Texas, Sherman Division, in Evicam Int’l, Inc. v. Enforcement Video, LLC d/b/a Watchguard Video, Civil Action 4:16-CV-105, Judge Mazzant ruled on a motion in limine related to the hypothetical negotiation (along with other issues).  Evicam moved to “exclude any argument, evidence, or testimony regarding how WatchGuard would have behaved at a hypothetical negotiation.”  Slip Op. at 1.  The court noted that a “reasonable royalty can be calculated from an established royalty, profit projections, or a hypothetical negotiation based on the factors in Georgia-Pacific.”  Id. (citing Wordtech Sys. V. Integrated Networks, 609 F.3d 1308, 1319 (Fed. Cir. 2010)).

The court pointed out that Evicam’s expert used the Georgia-Pacific factors to determine a reasonable royalty rate.  Id.  WatchGuard was free to file an expert report to challenge the underlying facts relied on by Evicam’s expert regarding how WatchGuard would have behaved.  Id. at 1-2.  In the absence of a rebuttal report, Evicam’s motion was granted.  “Since the Georgia–Pacific factors rely on underlying facts to make reasonable inferences about a party’s behavior during a hypothetical negotiation, evidence of how WatchGuard would have actually behaved is irrelevant.”  Id. at 1.


The opinions expressed are those of the authors on the date noted above and do not necessarily reflect the views of Fish & Richardson P.C., any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes only and is not intended to be and should not be taken as legal advice. No attorney-client relationship is formed.