Intellectual property damages analysis is billed at an hourly rate against a retainer established at the outset, with a written fee schedule and a cost estimate before work begins. The scope of the engagement, and so its cost, depends on the factors below.
How intellectual property damages is billed
Intellectual property damages analysis is billed at an hourly rate for records review, license and market analysis, modeling, report preparation, and testimony. A retainer is established at the outset and applied against time incurred. The current rate schedule and retainer terms are provided on request and confirmed in a written engagement agreement.
What sets the scope
Intellectual property damages engagements are scoped to the rights asserted, the accused products and the damages period, and how much of the record must be built. A royalty analysis for one patent and one accused product line, with the infringer's sales data and the relevant licenses in hand, is the narrowest scope; several patents or marks, lost profits or price erosion claims that require the market to be reconstructed, trade secrets that must be valued one by one, apportionment that depends on survey or technical evidence, or parallel infringement and license claims widen it. We provide a written fee schedule and a cost estimate before work begins.
What drives cost
Number and kind of rights asserted, patents, trademarks, copyrights, or trade secrets, and whether each claim needs a measure of its own
Number of accused products and the length of the damages period, and whether the sales, pricing, and cost data arrive in usable form or must be rebuilt from transaction records
Whether lost profits, price erosion, or a market share must be reconstructed, which requires the market, the substitutes, and the owner's capacity to be analyzed
Scope of the license analysis: the licenses to the rights in suit, comparable licenses in the record and in public sources, and any lump sums that must be converted to rates
The apportionment evidence and the coordination it requires with the technical and survey experts
Deposition and trial testimony, including preparation and travel time
28 U.S.C. sec. 1338 (patents, plant variety protection, copyrights, mask works, designs, trademarks, and unfair competition). law.cornell.edu
Georgia-Pacific Corp. v. United States Plywood Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970), modified and aff'd, 446 F.2d 295 (2d Cir. 1971). static.case.law
Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 561 F.2d 1365 (10th Cir. 1977). static.case.law
28 U.S.C. sec. 1295 (jurisdiction of the United States Court of Appeals for the Federal Circuit). law.cornell.edu
Unif. Trade Secrets Act with 1985 Amendments (Unif. L. Comm'n 1985). uniformlaws.org