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Intellectual Property

Economists at The Brattle Group provide innovative and rigorous economics analysis, combined with in-depth industry experience, to assist our clients with complex intellectual property matters.

Brattle’s intellectual property group has a proven track record of successful case execution. Our Principals have submitted expert reports in over 100 IP matters, and we also work closely with a number of leading academic and industry experts. Our collective experience spans a wide range of industries, including medical devices, pharmaceuticals, biologic drugs, computer hardware and software, telecommunications, navigation and location technologies, and consumer products. We strive within a changing and unpredictable litigation environment to manage costs carefully, while delivering the maximum net value to our clients.

Areas of Expertise
EVENT

Brattle Principal Andy Harington will speak at the Goodman’s Intellectual Property (IP) and Competition Law program, to be held September 26 in Toronto, Ontario, Canada.

EVENT

Brattle Principal Pallavi Seth will participate in The Knowledge Group’s webinar, “Trade Secrets Theft Uprising: What You Should Know and Do for Your Company’s Protection,” taking place November 7 from 12:00-2:00 pm (ET).

Engagements
REPRESENTATIVE ENGAGEMENTS

Below is a list of representative engagements for our Intellectual Property practice.

Damages analysis in medical devices
Brattle experts have extensive experience in estimating damages for patent infringement matters in the medical device industry. For example, in a recent complex case, the plaintiff —which had asserted three patents against the defendant— was, in turn, accused of infringing one of the defendant’s patents. Brattle’s expert analyzed the manner in which these devices were used, the related products used with them in surgery, and the nature of competition offered by alternative surgical approaches. Our expert also examined the client’s manufacturing facilities and production systems, its transfer pricing policies, and the effects these had on the lost profits of the subsidiary that owned the patents in suit. At trial our expert testified regarding both lost profits and reasonable royalty damages. The jury awarded Brattle’s client over $100,000,000 in damages.
Damages analysis in the pharmaceutical industry
Brattle experts have calculated lost profits and/or reasonable royalties in a number of disputes involving prescription and over the counter (OTC) drugs. In these engagements, we have provided economic assessments of customers’ branded and generic alternatives to the drug at issue. We have also evaluated the extent to which the branded drug’s sales can be attributed to its manufacturer’s marketing assets and other intangibles in order to assess the plaintiffs likely sales in the “but for” world. Drugs analyzed include those used to treat asthma and other respiratory conditions, HIV/AIDS, GERD, and bacterial infections.
Damages analysis associated with theft of technology and trade secrets
For a leading U.S. manufacturer of chemicals, adhesives, tape, and label products that had been the victim of a concerted program of industrial espionage by a foreign competitor, a current Brattle principal quantified the economic damages resulting from the theft of technology and trade secret information, offering testimony both in the sentencing hearing of the criminal case of a defendant executive convicted of economic espionage, and in the civil lawsuit filed by the U.S. company seeking redress for damages suffered as a result of the theft. The jury in the civil trial awarded $60 million in damages based on this testimony.
Impact analysis of misappropriation
In connection with an intellectual property-related Section 337 dispute before the International Trade Commission, Brattle provided economic analysis and expert testimony on behalf of the Claimant, a major U.S. manufacturer of construction equipment. In the events leading up to this dispute, the Respondent—a Chinese manufacturer of construction equipment—hired a leading researcher employed by the Claimant, as well as a number of additional employees, who brought with them proprietary business and technical information belonging to the Claimant. The Respondent was charged with misappropriation of a number of patents and trade secrets. Brattle provided expert testimony on the existence of a threatened domestic industry, and on the nature and magnitude of the economic injury likely to result from the misappropriation. The Commission ruled in favor of the Respondent, issuing a cease-and-desist order against Claimant with respect to the asserted trade secrets for a period of 10 years.
Analysis of irreparable harm in software
Brattle prepared testimony on irreparable harm that was used to successfully defend a global human resources consulting company against a competitor’s efforts to obtain a preliminary injunction that would have barred the consulting company from selling its software products for a two year period. Our testimony showed that our client had an insignificant share of the plaintiff’s target market and rarely marketed its product to the same firms as the plaintiff. Moreover, despite the plaintiff’s claims to the contrary, a large number of firms provide the accused software to customers. Hence, any injunction to remove our client from the market would have a de minimis impact on the fortunes of the plaintiff. This case settled on favorable terms for our client.

Class certification in alleged false advertising case
Our client, a producer of branded nutritional supplements, had been accused of collecting a market price premium on its products due to alleged false claims appearing on the product label. Brattle’s expert testified that the plaintiff’s expert had failed to describe a workable approach for determining the damages associated with this price premium on a class-wide basis. In particular, Brattle’s expert explained that the plaintiff’s proposed use of a conjoint analysis to assess the price premium was unworkable because conjoint survey data only take into account demand side factors whereas a price premium would be the product of both supply and demand factors. Brattle’s expert also explained that the plaintiff’s proposed use of a hedonic analysis was unworkable because the available data would not allow for separate estimation of the price premium.

Experts
Principals
Principal Emeritus
Director of Global Development
Academic Advisor & Other Outside Experts
Greg Allenby
Academic Advisor
The Ohio State University, Fisher College of Business
View Bio
Nicholas S. Economides
Academic Advisor
New York University Stern School of Business
View Bio
Joshua Gans
Academic Advisor
Rotman School of Management at the University of Toronto
View Bio
Henry G. Grabowski
Academic Advisor
Duke University
View Bio
Dennis E. Logue
Academic Advisor
Tuck School at Dartmouth University
View Bio
Peter E. Rossi
Academic Advisor
University of California, Los Angeles
View Bio
Publications
Book
Calculating Monetary Remedies in Intellectual Property Cases in Canada
August 01, 2018
Published by The Brattle Group

This book serves as a reference to assist those involved in a quantification of monetary remedies by isolating each aspect that may be relevant to a case and focusing on the principles and case law relevant to that aspect, both recent Canadian cases as well as select international case law.

Article
Calculating Reasonable Royalty Damages Using Conjoint Analysis
August 2017
Published in the American Intellectual Property Law Association (AIPLA) Quarterly Journal

The article reviews the economic framework behind the calculation of reasonable royalty damages and explain how to implement two key methods of computing these damages—referred to as the Market Share Method (“MSM”) and the Equilibrium Profit Method (“EPM”).

Article
Computing Damages in Product Mislabeling Cases: Plaintiffs' Mistaken Approach in Briseno v. ConAgra
February 27, 2017
Published in Bloomberg Bureau of National Affairs (BNA)

An article about fundamental economic errors in approaches to damages in recent product mislabeling cases.

Article
A Quick Guide to Patent Damages Discovery
August 15, 2016
Kevin Neels, Pallavi Seth, and Jeffrey C. Metzcar
Published in Law360
The article discusses the types of information attorneys and economic experts find valuable in patent infringement litigation.
Article
An Empirical Approach To Reverse Payment Settlements
July 06, 2015
Published on Law360
Presentation
ITC in Flux: Learnings from Recent Developments
April 04, 2014
Pallavi Seth, Lynn I. Levine, Eric S. Namrow, and Kimberly Parke
Presented at the American Bar Association’s 29th Annual Intellectual Property Law Conference
Article
The Role Of Conjoint Surveys In Reasonable Royalty Cases
October 16, 2013
Published in Law360
Presentation
Patent Damages: The Role of Conjoint Surveys
August 2013
Presented at the American Bar Association Annual Meeting, San Francisco
Presentation
Safeguarding U.S. Intellectual Property Rights: The Domestic Industry Requirement of Section 337
July 25, 2013
Prepared for a West LegalEd CLE Program
Presentation
Making a Public Interest Case at the ITC
June 19, 2013
Pallavi Seth, Vaishali Udupa, Mark Whitaker, and Kimberly Parke
Presented at the American Bar Association CLE Program
Article
An Economic View of ITC 337 Cases and the Public Interest
November 21, 2012
Published in Law360
Brochure
Intellectual Property Brochure
2012
Published by The Brattle Group, Inc.
News & Knowledge
February 21, 2019
Pallavi Seth to Participate in The Knowledge Group Webinar on Section 337 Investigations and the ITC

Brattle Principal Pallavi Seth will participate in The Knowledge Group's webinar, "Section 337 Investigations and the ITC in the 2019 Landscape," to be held February 21 from 12:00-2:00 pm (ET).

November 07, 2018
Pallavi Seth to Participate in The Knowledge Group Webinar on Trade Secrets Theft

Brattle Principal Pallavi Seth will participate in The Knowledge Group’s webinar, “Trade Secrets Theft Uprising: What You Should Know and Do for Your Company’s Protection,” taking place November 7 from 12:00-2:00 pm (ET).

September 26, 2018
Andy Harington to Present at Goodman's IP and Competition Law Program

Brattle Principal Andy Harington will speak at the Goodman’s Intellectual Property (IP) and Competition Law program, to be held September 26 in Toronto, Ontario, Canada.

August 01, 2018
Brattle Economists Author Book on Calculating Monetary Remedies in Intellectual Property Cases in Canada

The past few years have seen significant changes in Canadian case law regarding the computation of monetary remedies in intellectual property. Given the increasing complexity of these issues, Brattle economists Andy Harington and Dimitri Dimitropoulos, along with IP attorney Alex Stack, have developed a single, comprehensive resource to summarize the principles and the precedent case law.

June 13, 2018
Eliana Garcés to Participate in Knowledge Group Webinar on Trends and Updates in Standard Essential Patent Licensing

Brattle Principal Eliana Garcés will participate in The Knowledge Group’s webinar, “Trends and Updates in Standard Essential Patent Licensing: What Lies Ahead in 2018,” taking place June 13, 2018 from 3-5 pm (ET).

May 29, 2018
Lisa Cameron to Participate in Knowledge Group Webinar on Reasonable Royalty Damages

Brattle Principal Lisa Cameron will participate in The Knowledge Group’s Webinar, “Reasonable Royalty Damages, Apportionment and Expert Opinions in Light of Exmark Case,” taking place May 28, 2018 from 3:00-4:30 pm (ET).

March 14, 2018
Armando Levy to Participate in Knowledge Group Webinar on Class Actions and Complex Litigation

Brattle Principal Armando Levy will participate in The Knowledge Group’s webinar, “Class Actions and Complex Litigation: Defending against Class Action Litigation,” taking place March 14, 2018 from 3-5 pm (EST).

October 26, 2017
Guy Ben-Ishai to Participate in The Knowledge Group Webinar on Reverse Payment Settlements

Brattle Principal Guy Ben-Ishai will present during The Knowledge Group’s webinar, “Reverse Payment Settlements: Trends & Updates in 2017 & Beyond,” taking place October 26, 2017 from 12-2 pm EST.

September 28, 2017
Pallavi Seth to Present on The Knowledge Group’s Webinar on ITC Section 337 Litigation

Brattle Principal Pallavi Seth will participate on The Knowledge Group’s webinar, “ITC Section 337 Litigation: Tips & Strategies for Your Firm,” taking place September 28, 2017 from 12-2 pm EST.

September 19, 2017
Haris Tabakovic Receives Harvard University Distinction in Teaching Award

Brattle Associate Haris Tabakovic is the recipient of the Harvard University Spring 2017 Distinction in Teaching Award for his course “Innovation and Intellectual Property.”

August 24, 2017
Pallavi Seth Appointed Chair of ABA's International Trade Commission Committee

Brattle Principal Pallavi Seth has been appointed as Chair of the International Trade Commission (ITC) Committee, part of the American Bar Association’s (ABA) Section of Intellectual Property Law (ABA-IPL), for the upcoming 2017-2018 membership year.

August 03, 2017
Brattle Economists and Academic Advisors Publish Article in AIPLA Quarterly on Using Conjoint Analysis to Calculate Reasonable Royalty Damages

Brattle economists Lisa Cameron and Jeremy Verlinda and Academic Advisors Greg Allenby and Peter Rossi have recently contributed the article “Calculating Reasonable Royalty Damages Using Conjoint Analysis” to the American Intellectual Property Law Association Quarterly Journal.

July 18, 2017
Pallavi Seth to Discuss Fundamentals of Trade Secret Litigation on ABA Webinar

Brattle Principal Pallavi Seth will present during the American Bar Association’s (ABA) webinar on “Fundamentals of Today’s Trade Secret Litigation: The Defend Trade Secrets Act (DTSA), Section 337 at the International Trade Commission (ITC), and More,” taking place July 18, 2017 from 1:00-2:30 pm EST.

March 21, 2017
Lisa Cameron to Present on The Knowledge Group’s Webinar on Reverse Payment Settlements

Brattle Principal Lisa Cameron will present during The Knowledge Group’s webinar, “Reverse Payment Settlements: Hot Topics in 2017,” taking place March 21, 2017 from 3-5 pm EST.

February 28, 2017
Brattle Economists and Academic Advisors Author Article for BNA on Damages in Product Mislabeling Cases

Brattle Principal Lisa Cameron, Academic Advisors Professor Greg Allenby and Professor Peter E. Rossi, and Brattle Senior Research Analyst Yikang Li recently co-authored an article for BNA about fundamental economic errors in approaches to damages in recent product mislabeling cases.

February 27, 2017
Computing Damages in Product Mislabeling Cases: Plaintiffs' Mistaken Approach in Briseno v. ConAgra

Brattle Principal Lisa Cameron, Academic Advisors Professor Greg Allenby and Professor Peter E. Rossi, and Brattle Senior Research Analyst Yikang Li recently co-authored an article for BNA about fundamental economic errors in approaches to damages in recent product mislabeling cases.

August 15, 2016
Article by Brattle Economists Provides Guide to Patent Damages Discovery

Brattle Principals Kevin Neels and Pallavi Seth, along with Jeffrey C. Metzcar, partner at Thompson Hine, recently wrote an article published in Law360 discussing the types of information attorneys and economic experts find valuable in patent infringement litigation.

February 11, 2016
Pallavi Seth to Present on Trade Secrets at DC Bar’s “Off the Record” Program

Brattle Senior Associate Pallavi Seth will present at the DC Bar’s “Off the Record” luncheon program, taking place on February 11, 2016 in Washington, D.C.

December 07, 2015
Brattle Economists Co-Author Article on Determining Injury from Trade Secret Misappropriation before the ITC

Brattle economists Pallavi Seth and Kevin Neels have recently written an article that examines the types of evidence required to show injury to a domestic industry from trade secret misappropriation before the U.S. International Trade Commission (ITC).