Update On Bargaining Theory In Hypothetical Negotiations

Law360, New York (September 2, 2015, 11:29 AM EDT) -- Until recently, some uncertainty existed as to whether the use of bargaining theory was a permissible approach to modeling the hypothetical negotiations appearing in intellectual property litigation. A recent ruling, however, on a motion in limine to exclude expert testimony based on a bargaining model provides new insight into the standards applied by the Federal Circuit in determining whether a bargaining model is admissible.

  In the wake of its ruling in Uniloc, the Federal Circuit has been admonishing experts for applying so-called "rules of thumb" that may lack any basis in the particular facts of a case.[1] This admonishment was...

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