KW Economics prepares lost profits analysis for intellectual property infringement cases involving North Dakota: 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 North Dakota courts that hear the claims. Plaintiff and defense.
In an intellectual property case lost profits are the owner's profits on the sales it would have made but for the infringement or misappropriation, including the higher price it would have charged without the infringer's competition. The economist reconstructs the but-for market: the demand for the protected product, the substitutes buyers could have chosen, the owner's capacity to make and sell the added units, and its incremental profit on them, using the four-factor proof patent courts commonly accept or a market share approach where several competitors share the market. Price erosion requires an estimate of how demand responds to price, unpatented items count only where they function together with the patented product, and the sales the owner cannot show it would have made are left to a reasonable royalty.
Lost profits and related commercial damages for contract, business-tort, and business-interruption matters. The analysis builds the but-for revenue and cost path from the company's own history, its market, and the terms of the disputed relationship, links each claimed loss to the conduct at issue, addresses mitigation, and reasons through the period of loss so the damages figure answers the causation question as well as the amount.
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 North Dakota's own courts are tested under the standard those courts apply. North Dakota admits expert testimony liberally: the court asks whether the economist is qualified by training and experience and whether the opinion will help the fact finder, and leaves the weight of the testimony to cross-examination rather than screening its methodology in advance. 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: North Dakota Supreme Court. Court system: ndcourts.gov.
Federal venues: District of North Dakota.
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; North Dakota'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 the final report and provide deposition and trial testimony and rebuttal of opposing damages models.
In an intellectual property case lost profits are the owner's profits on the sales it would have made but for the infringement or misappropriation, including the higher price it would have charged without the infringer's competition. The economist reconstructs the but-for market: the demand for the protected product, the substitutes buyers could have chosen, the owner's capacity to make and sell the added units, and its incremental profit on them, using the four-factor proof patent courts commonly accept or a market share approach where several competitors share the market. Price erosion requires an estimate of how demand responds to price, unpatented items count only where they function together with the patented product, and the sales the owner cannot show it would have made are left to a reasonable royalty.
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 North Dakota's own courts are tested under the standard those courts apply. North Dakota admits expert testimony liberally: the court asks whether the economist is qualified by training and experience and whether the opinion will help the fact finder, and leaves the weight of the testimony to cross-examination rather than screening its methodology in advance. 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 North Dakota is heard in the United States District Court for the District of North Dakota, a case involving a business based in North Dakota 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 North Dakota'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 Eighth Circuit. Claims under North Dakota 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 District Court (General jurisdiction; 7 judicial districts across 53 counties), with final appeals to the North Dakota Supreme Court.
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; North Dakota'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 North Dakota law that governs each claim to a documented figure.
Request a consultation on Lost Profits or call (201) 343-0700. Plaintiff and defense counsel.