Rebuttal analysis applied to intellectual property infringement litigation: methodology, deliverables, and case-specific considerations.
An opposing intellectual property damages report is tested on the choices that carry its number: the royalty base and whether the base and the rate together are apportioned to the patented feature or reach the whole product's value, the licenses offered as comparable and the adjustments made to them, the conversion of lump sums into rates, the alternatives available to the infringer, the market and capacity assumed in a lost profits claim, the costs deducted from the infringer's profits, and the damages period. The economist rebuilds each step from the report's own data and workpapers, recalculates the result under corrected inputs one at a time and together, and ranks each finding by its effect, so counsel can see which choices carry the number and the court can decide the reliability questions on the record.
Critique of an opposing economic damages, valuation, or forensic accounting report for plaintiff or defense counsel. The review tests the assumptions, data sources, discount rates, worklife and life expectancy inputs, growth rates, mitigation treatment, and arithmetic behind the opposing number, identifies the errors that matter, and quantifies how the conclusion changes when they are corrected. The result supports cross-examination, a rebuttal report, or a motion directed at the reliability of the opinion.
Depending on the right, the claim consists of a reasonable royalty for the use made of a patent, at the least, and the patentee's lost profits on sales it would have made, including price erosion, and for a design patent the infringer's total profit on the article of manufacture; the defendant's profits, the owner's actual damages, and the cost of corrective advertising for an infringed trademark; the copyright owner's actual damages and the infringer's profits not already counted in them, or, where the work was registered in time (before the infringement began, or within three months after first publication), statutory damages within the range the statute fixes, which the owner can elect instead; and the trade secret owner's actual loss and the misappropriator's unjust enrichment, or a reasonable royalty in their place. A license dispute adds the royalties owed under the contract's own terms. The drivers are the accused products' unit sales, revenue, prices, and costs, the owner's sales, margins, and capacity, the licenses to the rights in suit and to comparable technology, the marking, notice, and public disclosure records that set the damages period, the parties' forecasts and business plans from the date the infringement began, and the technical and survey experts' opinions on what the right covers and what it adds to the product.
We issue a rebuttal report where one is disclosed and provide deposition and trial testimony, cross-examination outlines, and support for motions directed at the opinion.
Each state page adds the courts, the expert standard, and the damages framework the report is built around in that venue.
Whether the royalty base and rate are apportioned to the patented feature and whether the licenses relied on are comparable in technology, rights, and circumstances, since those two choices move the result more than most others. The review then checks how lump sums were converted to rates, whether settlement licenses were treated as market transactions, and whether the alternatives open to the infringer are accounted for.
Yes. Courts decide many damages disputes in intellectual property cases as questions of whether the testimony rests on sufficient facts or data and on reliable methods reliably applied, so the review identifies the inputs that lack support in the record, such as a rate taken from a rule of thumb or licenses read for a per-unit rate they do not state, and documents each finding so counsel can raise it before trial or on cross-examination.
Request a consultation on Rebuttal or call (201) 343-0700. Plaintiff and defense counsel.