What happens when an expert moves from testifying to consulting in a case?
It’s fairly common for a valuation analyst to sign on to a legal case in a “consulting” capacity. Not only might this reduce costs during the preliminary phases of litigation, it shields communications between the expert and attorney—and any preliminary reports or work papers—from disclosure and discovery, absent “exceptional circumstances” (the standard under the federal [...]
Still one more judge admonishes experts in damages cases to tie facts of the case to the theory used
Ever since Uniloc’s rejection of the 15%-of-gross-profit rule-of-thumb for determining damages, experts have been attempting to combine other theories with Georgia Pacific factors. Another attempt to use the Nash Bargaining Solution (NBS) to determine a reasonable royalty rate in a damages case has failed. In fact, it may well be that Judge Alsop’s warning in [...]
Court says lone settlement agreement cannot support plaintiff’s damages theory
After AVM sued Intel for infringing on one of its patents, its expert established reasonable royalty damages between $150 million and $300 million “or more.” Intel filed a Daubert motion to exclude the testimony. Earlier, a federal court stated that it was inclined to rule in Intel’s favor but wanted to hear from the expert in person [...]
Expert’s lack of market inquiry and analysis doesn’t impress crusading Judge Posner
In a Daubert decision, Judge Richard Posner (7th Circuit) continues on his judicial quest for tightening the gatekeeping role in patent cases. Although the plaintiff’s expert was “highly qualified” and competent to estimate damages in the case—which involved a patented formula for creating cookies free of trans fats—she made several critical errors in her opinions and calculations. Bookmark [...]
Expect courts to continue to criticize valuation experts and their methodologies
In an article in the April/May issue of World Trademark Review, Wes Anson, Jeff Noble and David Anderson of Consor discuss the state of IP valuation in litigation today, the reasons for the wide disparity in experts’ conclusions, and the scrutiny courts are putting on valuation analysts to develop unbiased conclusions. Bookmark on DeliciousDigg this [...]
Does apportionment rule extend to trade secrets cases?
Case analysis: Versata Software, Inc. v. Internet Brands, Inc., 2012 U.S. Dist. LEXIS 145020 (October 9, 2012) Background: Both the plaintiff and defendant sold software to large automobile manufacturers that permitted customers to comparison-shop for cars on line. After the plaintiff lost its contract with Chrysler to the defendant, it sued for patent infringement related [...]
Judge Posner again takes aim at experts’ patent damages calculations
In his crusade to “fix” the U.S. patent system, Judge Richard Posner (7th Circuit) wants federal courts to use the two most ready tools at their disposal: the appointment of neutral damages experts and the application of a more precise calculus of damages. Bookmark on DeliciousDigg this postRecommend on Facebookshare via RedditShare with StumblersTweet about [...]
So far, the Nash Bargaining Solution is no stand-alone substitute for the 25% rule-of-thumb
Uniloc put to rest the 25% rule-of-thumb. Assuming the problem is the “of-thumb” nature of the 25% rule, seeking more rigorous proof, plaintiffs in patent infringement cases have tried turning to the Nash Bargaining Solution as a mathematical construct for calculating damages. So, how’s that going for them? Bookmark on DeliciousDigg this postRecommend on Facebookshare [...]
Expert’s apportionment is not enough to save patent damages—but it saves copyright claims
After a jury awarded the plaintiff $60 million for copyright infringement and just over $51 million for patent infringement, the defendant appealed both verdicts, claiming they lacked sufficient evidence. Bookmark on DeliciousDigg this postRecommend on Facebookshare via RedditShare with StumblersTweet about itSubscribe to the comments on this post
What is a reasonable RAND royalty rate and range?
To ensure sophisticated electronic devices all work together, global standards-setting organizations (such as the International Telecommunications Union and the Institute of Electrical and Electronics Engineers) require member companies to license essential patents at “reasonable and non-discriminatory rates,” or RAND. Bookmark on DeliciousDigg this postRecommend on Facebookshare via RedditShare with StumblersTweet about itSubscribe to the comments [...]
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