KW Economics prepares rebuttal analysis for intellectual property infringement cases involving Alabama: the measure each patent, trademark, copyright, or trade secret claim carries, the sales, cost, and license records that drive it, and a report built for the federal and Alabama courts that hear the claims. Plaintiff and defense.
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.
Which measure dominates depends on the right and on how the parties compete. Where the owner and the infringer sell competing products and few substitutes exist, lost profits on the diverted sales and price erosion can exceed any royalty; where the owner licenses rather than sells, or many substitutes share the market, the reasonable royalty usually carries the claim, and the royalty base, the comparability of the licenses, and the cost of the infringer's alternatives move it most. In a trademark or copyright claim for the infringer's profits, the costs the infringer can deduct and the share of profit it can attribute to factors other than the protected right are the usual battleground, and in a trade secret case the length of the protection period and the head start, and whether the owner's loss and the misappropriator's gain overlap, often decide the size of the award. Across every right, apportionment to the protected feature is the most contested input. Enhanced patent damages are for the court, and exemplary trade secret damages are for the court under the federal statute and the uniform act, though some state enactments, such as Texas's, give them to the fact finder; either way they turn on the defendant's conduct, not on the economic measure.
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 Alabama's own courts are tested under the standard those courts apply. Alabama applies a reliability inquiry to scientific evidence and asks of other expert testimony whether the witness is qualified by training and experience and whether the opinion will assist the jury. 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: Supreme Court of Alabama. Court system: alacourt.gov.
Federal venues: Northern District of Alabama, Middle District of Alabama, Southern District of Alabama.
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; Alabama'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.
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.
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.
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 Alabama's own courts are tested under the standard those courts apply. Alabama applies a reliability inquiry to scientific evidence and asks of other expert testimony whether the witness is qualified by training and experience and whether the opinion will assist the jury. 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. Patent and copyright claims arise under federal law that only the federal courts may hear: a case filed in Alabama is heard in the United States District Courts for the Northern District of Alabama, Middle District of Alabama, and Southern District of Alabama, a case involving a business based in Alabama 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 Alabama'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 Eleventh Circuit. Claims under Alabama 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 Circuit Court (General jurisdiction trial court; hears larger civil cases and all felony criminal cases), with final appeals to the Supreme Court of Alabama.
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; Alabama'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 report presents each measure the claims support with its period, base, and apportionment, states every license, rate, and cost with its source, and shows the result under the alternatives the other side is likely to argue, so counsel can apply the federal statute or the Alabama law that governs each claim to a documented figure.
Request a consultation on Rebuttal or call (201) 343-0700. Plaintiff and defense counsel.