Brattle’s Intellectual Property Practice: Highlights from 2021
Over the past year, as many courts have reopened while others continue to function virtually, Brattle’s IP practice has been busy with matters before US district courts, the US International Trade Commission (ITC), judicial boards, and the Supreme People’s Court of China.
We are honored to have contributed to several important and interesting matters throughout 2021 and would like to thank our clients for partnering with Brattle. We look forward to working with you in 2022 and wish you a happy and healthy start to the New Year.
Case Highlights from 2021
Copyright and Surveys
Concluding a multi-year proceeding, the US Copyright Royalty Board (CRB) decided to increase the royalty rates that non-interactive webcasting services such as Pandora must pay to recording artists and sound recording copyright owners from 2021 to 2025. Led by Principal Dr. Steve Herscovici and Senior Associate Dr. Haris Tabakovic, a Brattle team supported expert testimony on behalf of copyright holders and assisted in evaluating economic arguments made by music webcasters that wanted to lower rates from current levels.
We worked closely with Professor Gal Zauberman of the Yale School of Management in designing a survey to evaluate the extent to which consumers use music services and other audio content as substitutes. The CRB decision rejected the webcasters’ arguments, opting instead to increase rates by 8–17% over the rates that had been in effect. This matter was the latest in a series of CRB proceedings we have worked on with SoundExchange involving license fees for a number of different music services.
Principal Dr. Pallavi Seth recently provided trial and deposition testimony in support of the Regents of the University of California in a high-profile case involving filament LED technology, invented by University of California, Santa Barbara (UCSB) Professor and Nobel Prize winner Shuji Nakamura. Dr. Seth’s expert report examined domestic economic investments by UCSB related to the asserted patents, and the role of universities in protecting intellectual property and furthering IP policy goals. Dr. Seth’s testimony was the first of its kind. The Administrative Law Judge (ALJ) noted his appreciation during trial for her unique insights and, in his Initial Determination (ID), found that the economic domestic industry prong had been satisfied by UCSB.
Principal Dr. Coleman Bazelon recently testified on domestic industry, cease and desist (CDO), and bond at two back-to-back hearings. Led by Dr. Seth, Brattle teams supported his expert testimony on behalf of Ocado Group – a UK-based online grocery logistics company – regarding its automated storage system technology, and his expert testimony on behalf of CommScope, Hewlett Packard Enterprise (HPE), and NETGEAR related to technology for networking products, such as routers. In this important win, the ALJ cited Dr. Bazelon’s testimony extensively in the ID and found that the economic domestic industry prong had not been satisfied by the complainant. Further, the ALJ recommended no CDO or bonding requirements for our clients. Both hearings were over Zoom and, although the virtual setting can be challenging, Dr. Bazelon confirmed that cross examination is still engaging and – sometimes – even fun.
Damages and FRAND
In the appeals case of four Chinese rare earth enterprises against Hitachi Metals for compulsory licensing, Principal Dr. Vanessa Yanhua Zhang and Prof. Dr. John Gong submitted an expert report on behalf of Hitachi Metals regarding allegations of abuse of market dominance, essential facilities in IP rights, refusal of patent licensing, and refusal to deal. This is the first refusal to deal antitrust case over non-standard essential patents (non-SEPs) and the first case in which the essential facility doctrine was applied in China. Dr. Zhang also testified at the Supreme People’s Court of China on the matter.
Additionally, in the China SEP litigation of Xiaomi v. InterDigital, Dr. Zhang submitted an expert report on behalf of InterDigital to provide an economic rebuttal against Xiaomi’s expert opinions on FRAND licensing rates, addressing the key issues in comparable licensing and top-down methodologies. This is the first case in China involving the assessment of global FRAND rates for SEPs.
In the District Court of Delaware, Dr. Seth provided deposition testimony and Senior Associate Dr. Brent Lutes led the Brattle team in support of her expert report for a damages matter on behalf of Sony, related to potential patent infringement of motion control technology in Sony’s PlayStation products. In our damages analysis, Brattle constructed a bespoke and innovative approach to valuing a patent that purportedly pertains only to a small part of a large and complex system of interdependent technologies.
Learn more about the use of survey analysis in ITC intellectual property cases in our recent article.