KW Economics prepares intellectual property damages analysis for commercial contract dispute cases venued in California: what the loss claim consists of, the records that drive it, and a present value built to California damages rules and venues. Plaintiff and defense.
A commercial contract dispute becomes an intellectual property damages question when the contract is a license: a patent, trademark, software, or technology license whose royalties were underpaid, a licensee that kept selling after the license ended, or a dispute over the royalty base, the products covered, or the audit rights. The economist reads the license and its royalty provisions, rebuilds the royalty base from the licensee's sales records and any audit findings, and computes the shortfall by period under the contract's own terms. Where a licensee kept using the technology after termination, or an infringement claim is joined with the contract claim, the economist also measures the infringement damages, often a reasonable royalty informed by the license itself, and keeps the contract and infringement measures separate.
Economic analysis and expert testimony on damages in patent, trademark, copyright, and trade secret cases and in license and royalty disputes, for the patentee or the accused infringer and for either side of every other claim. The work measures each remedy the governing statute allows: a reasonable royalty and the patentee's lost profits, including price erosion, apportioned to the patented feature; the defendant's profits, the owner's actual damages, and corrective advertising in a trademark case; actual damages and the infringer's profits in a copyright case, where the infringer carries the burden of its deductible expenses and of the profit owed to other factors; and actual loss, unjust enrichment, or a reasonable royalty for a misappropriated trade secret.
The size of the claim depends on the contract's remaining term, the profit margin the business would have realized, and how much of the lost volume was or could have been replaced. Incremental cost treatment is the usual battleground: whether a given cost would have been avoided when the revenue disappeared changes the margin and therefore the loss. For a new venture or a contract without a performance history, the reasonableness of the projected revenue is the central dispute, and the period over which lost profits are claimed is scrutinized against the contract's terms and the market.
California courts ask whether the reasoning and data behind an expert opinion are sound and whether the opinion rests on matter of a type experts reasonably rely on, reserving a general-acceptance test for novel scientific techniques; the witness is qualified by training and experience. Economic damages testimony is therefore examined on its inputs and logic: whether the worklife, growth, and discount assumptions have a published basis and whether they fit the record.
Highest court: Supreme Court of California. Court system: courts.ca.gov.
Federal venues: Northern District of California, Eastern District of California, Central District of California, Southern District of California.
California applies pure comparative fault in a negligence-based claim, reducing the award in proportion to the plaintiff's share. Interest before judgment runs as of right on a sum that was certain or capable of being made certain by calculation, is discretionary on an unliquidated contract claim, and in injury cases turns on the statutory offer-to-compromise procedure. Economic damages are not subject to a general statutory limit outside specific statutory claims, so the report states each loss as of a fixed date and identifies the components that were certain when they accrued.
We issue the final report on the disclosure schedule and provide deposition and trial testimony, critique of the opposing damages analysis, and updated calculations as the court construes any patent claims and the record develops.
A commercial contract dispute becomes an intellectual property damages question when the contract is a license: a patent, trademark, software, or technology license whose royalties were underpaid, a licensee that kept selling after the license ended, or a dispute over the royalty base, the products covered, or the audit rights. The economist reads the license and its royalty provisions, rebuilds the royalty base from the licensee's sales records and any audit findings, and computes the shortfall by period under the contract's own terms. Where a licensee kept using the technology after termination, or an infringement claim is joined with the contract claim, the economist also measures the infringement damages, often a reasonable royalty informed by the license itself, and keeps the contract and infringement measures separate.
California courts ask whether the reasoning and data behind an expert opinion are sound and whether the opinion rests on matter of a type experts reasonably rely on, reserving a general-acceptance test for novel scientific techniques; the witness is qualified by training and experience. Economic damages testimony is therefore examined on its inputs and logic: whether the worklife, growth, and discount assumptions have a published basis and whether they fit the record. Commercial Contract Dispute cases venued in California are heard in the Superior Court (Unified general jurisdiction trial court in each of 58 counties; handles all civil and criminal matters), with final appeals to the Supreme Court of California. Matters within federal jurisdiction proceed in the Northern District of California, Eastern District of California, Central District of California, and Southern District of California.
California applies pure comparative fault in a negligence-based claim, reducing the award in proportion to the plaintiff's share. Interest before judgment runs as of right on a sum that was certain or capable of being made certain by calculation, is discretionary on an unliquidated contract claim, and in injury cases turns on the statutory offer-to-compromise procedure. Economic damages are not subject to a general statutory limit outside specific statutory claims, so the report states each loss as of a fixed date and identifies the components that were certain when they accrued. The report presents past and future amounts separately, states every rate and table with its source, and shows the result under the alternatives the other side is likely to argue, so counsel can apply the California rules to a documented figure.
Request a consultation on IP Damages or call (201) 343-0700. Plaintiff and defense counsel.