KW Economics prepares economic damages analyses for intellectual property infringement cases involving Washington: the measure each patent, trademark, copyright, and trade secret claim carries, the sales, cost, and license records that drive it, and a report built for the federal courts, which alone hear patent and copyright claims, and for the Washington courts that hear claims under Washington law. Plaintiff and defense.
An intellectual property infringement claim measures what the unauthorized use of a patent, trademark, copyright, or trade secret cost the owner or gained the user, under the measure each statute provides, apportioned to the protected right and built from both sides' sales, cost, and license records. Read the full intellectual property infringement analysis guide.
In the federal district courts, which hear patent and copyright infringement claims between private parties, damages testimony is tested under the federal rules of evidence: whether the expert is qualified, whether the testimony rests on sufficient facts or data, and whether reliable methods were reliably applied to the facts of the case, with the proponent showing each is more likely than not. Claims heard in Washington's own courts are tested under the standard those courts apply. Washington courts ask whether the methodology behind an expert opinion is generally accepted in the relevant professional community and whether the economist is qualified by training and experience to apply it, leaving disputes over the inputs to cross-examination. An intellectual property damages report meets each of these inquiries by tying every royalty input, apportionment step, and sales figure to the record or to another expert's stated opinion.
Highest court: Washington Supreme Court. Federal venues: W.D. Wash., E.D. Wash. Court system: courts.wa.gov.
Patent, copyright, and trademark damages are set by federal statute: a reasonable royalty at least, and lost profits where they are proven, for a patent, with recovery limited to six years before suit and, for unmarked products, to the period after notice; the defendant's profits, the owner's actual damages, and the costs of the action for a trademark; and actual damages and the infringer's profits for a copyright, or statutory damages the owner elects instead where the work was registered in time, before the infringement began or within three months after first publication. Those measures do not change with the state, though the regional circuit's decisions govern how the copyright and trademark measures are applied. A trade secret claim can be brought under the federal statute, and most states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands have also enacted a version of the Uniform Trade Secrets Act; Washington's own law can govern the contract and license claims, whether they are brought with an infringement claim or on their own, and counsel confirms which trade secret law applies and the measures it allows.
The same four steps apply to an intellectual property infringement case involving Washington; the statute behind each claim, set out above, decides which measures enter the total.
Patent and copyright claims arise under federal law that only the federal courts may hear: a case filed in Washington is heard in the United States District Courts for the Western District of Washington and Eastern District of Washington, a case involving a business based in Washington may be filed in another district where venue lies, and a claim against the United States goes to the Court of Federal Claims; trademark and trade secret claims can be filed in federal court or in Washington's own courts. An appeal in a case with a claim or compulsory counterclaim under the patent laws goes to the United States Court of Appeals for the Federal Circuit, and an appeal in any other case from the district court to the United States Court of Appeals for the Ninth Circuit. Claims under Washington law, such as trade secret misappropriation, unfair competition, and disputes over royalties owed under a license, are usually heard with the infringement claim in federal court when they are joined with a patent or copyright claim, and can be heard there on their own where the parties' diverse citizenship brings them within federal jurisdiction; otherwise they are heard in the Superior Court (General jurisdiction; one in each of 39 counties; all civil, criminal, and domestic matters), with final appeals to the Washington Supreme Court.
Patent, copyright, and trademark damages are set by federal statute: a reasonable royalty at least, and lost profits where they are proven, for a patent, with recovery limited to six years before suit and, for unmarked products, to the period after notice; the defendant's profits, the owner's actual damages, and the costs of the action for a trademark; and actual damages and the infringer's profits for a copyright, or statutory damages the owner elects instead where the work was registered in time, before the infringement began or within three months after first publication. Those measures do not change with the state, though the regional circuit's decisions govern how the copyright and trademark measures are applied. A trade secret claim can be brought under the federal statute, and most states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands have also enacted a version of the Uniform Trade Secrets Act; Washington's own law can govern the contract and license claims, whether they are brought with an infringement claim or on their own, and counsel confirms which trade secret law applies and the measures it allows. In the federal district courts, which hear patent and copyright infringement claims between private parties, damages testimony is tested under the federal rules of evidence: whether the expert is qualified, whether the testimony rests on sufficient facts or data, and whether reliable methods were reliably applied to the facts of the case, with the proponent showing each is more likely than not. Claims heard in Washington's own courts are tested under the standard those courts apply. Washington courts ask whether the methodology behind an expert opinion is generally accepted in the relevant professional community and whether the economist is qualified by training and experience to apply it, leaving disputes over the inputs to cross-examination. An intellectual property damages report meets each of these inquiries by tying every royalty input, apportionment step, and sales figure to the record or to another expert's stated opinion.
Request a consultation on intellectual property infringement cases in Washington or call (201) 343-0700. Plaintiff and defense counsel.