From semiconductors to telecommunications, from life sciences to automotive, patented technologies provide critical strategic value across all modern industries. For patent owners, enforcing those rights can be necessary to preserve a competitive advantage hard-earned through innovation. For accused infringers, a significant ruling can be the difference between the continuation or conclusion of a product line – or even business operations. In either case, the economic aspects of patent disputes often carry high stakes and require careful, insightful, and well-supported analysis.
Stout’s intellectual property professionals have testified in hundreds of engagements involving patented technologies. Our practice is evenly split between work performed for plaintiffs and defendants. We use rigorous and sophisticated economic and financial analyses that draw upon our deep professional and industry experience to examine economic harm or damages issues. Our expertise easily crosses industry lines because it is based on a contemporaneous understanding of accepted methodologies. Our experts have the analytical skills to implement these methodologies – both creatively and defensibly – in even the most complex of engagements, and the ability and experience to clearly communicate our conclusions before the trier-of-fact.
Our intellectual property professionals analyze and testify on the following economic issues:
- Quantification of lost profits damages, including analysis of the Panduit factors, a reconstruction of the market but for the alleged infringement, analyses of incremental profit, and consideration of the potential impact of third parties in the marketplace
- Quantification of reasonable royalty damages, typically based upon careful analysis of the Georgia-Pacific factors and with consideration given to: the relevance of the entire market value rule; accepted methodologies on royalty base and rate apportionment; the relevance of potentially comparable licenses; the impact of potential non-infringing alternatives; and any key analytical indicators that would have been considered at a hypothetical negotiation
- Analysis of price erosion damages
- Analysis of future damages, for example, based on an ongoing royalty or future lost market share
- Evaluation of certain economic factors related to injunctions, including irreparable harm, the adequacy of available remedies, the balance of hardships, and the public interest, as articulated in eBay Inc. vs. MercExchange, L.L.C.
- Prepare pre-case and early-case damages disclosures and assessments to assist clients in evaluating options relating to exposure, the value of bringing a suit, issues to prioritize in discovery, sensitivity of key variables, and potential settlement opportunities
- Performance of economic analyses to inform the International Trade Commission on aspects related to whether a Section 337 violation exists and the appropriate remedial orders, given the need to protect and enforce a complainant's patent rights without harming the public interest.
- Analysis of economic indicators of commercial success, including the level and growth of unit sales, revenues, and market share of patent-embodying products
- Determination of Fair, Reasonable, and Non-Discriminatory (FRAND) royalty rates