Locating Time Frames For The Hypothetical Negotiation

In determining a reasonable royalty for patent infringement damages, district courts often use the hypothetical negotiation analysis: that is, what is the royalty rate that the patent owner and the infringer would have agreed to in a hypothetical negotiation at the time the infringement began (assuming the patent owner was hypothetically willing to license the patent). For those wrestling with this question, Judge Zobel's opinion on a recent Skyhook v. Google motion in limine reminds litigators that information dated well past the timeframe of the hypothetical negotiation may be relevant to the analysis.

The opinion came in the leadup to trial in the now-settled Skyhook v. Google case in the District of Massachusetts. Judge Zobel issued her rulings on a host of motions in limine, including one impacting the perplexing and difficult question of what evidence can be used in the hypothetical negotiation analysis. Since the hypothetical negotiation occurs immediately