Intellectual property damages analysis applied to intellectual property infringement litigation: methodology, deliverables, and case-specific considerations.
In an infringement or misappropriation case the damages analysis follows the statute behind each claim. For a patent, the economist builds the reasonable royalty from the hypothetical negotiation at the start of the infringement and any lost profits from the market the patentee and the infringer shared; for a trademark, the defendant's profits from its sales of the infringing goods, with its claimed costs tested, the owner's actual damages, and the cost of corrective advertising; for a copyright, actual damages and the infringer's profits not already counted in them; and for a trade secret, actual loss and unjust enrichment net of their overlap, or a royalty in their place. Each measure is apportioned to the protected right, limited to the recoverable period, and presented claim by claim, so the fact finder can apply the measure it finds.
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.
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 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.
Each state page adds the courts, the expert standard, and the damages framework the report is built around in that venue.
Yes, and it should keep them apart. Each claim has its own measure, period, and burden, and the same sale can support more than one claim, so the report computes each measure separately, shows where they overlap, and presents a combined figure only after removing the overlap, so the fact finder can award what it finds on each claim without counting a sale twice.
From the accused party's own sales and transaction records, produced in discovery and matched to the products the claims and the technical experts identify, by product, period, and customer. Where the data are incomplete, the report states what was estimated and how, and where the court's construction of the claims narrows the accused products, the schedule is rebuilt for the narrower set.
Request a consultation on IP Damages or call (201) 343-0700. Plaintiff and defense counsel.