Brattle Principals Lisa Cameron, Michael Cragg, and Daniel McFadden have recently published an article that discusses quantitative approaches for establishing damages in reasonably royalty cases in light of more stringent evidentiary standards for profit apportionment under the Georgia Pacific factors. The article, “The Role Of Conjoint Surveys In Reasonable Royalty Cases” was recently featured on Law360.
In typical reasonable royalty cases, experts must identify the portion of the defendant’s profits attributable to the patent-infringing components of a complex product using an approach outlined by the Georgia Pacific factors. The article highlights the recent Uniloc decision, which struck down the long-standing 25% rule on the grounds that the rule was not tied to the facts of the case, to illustrate how evidentiary standards using this approach have become stricter. Given these changes, the authors point out that litigants are also seeking to establish damages through more quantitative approaches – specifically, natural experiments and conjoint surveys.
The article discusses conjoint survey methodology, which elicits information from consumers about the purchasing decisions they would make if infringing and non-infringing versions of the product were both available. The authors also review responses to this approach, which has been used to establish the valued of patented attributes in high-profile cases such as Microsoft v Motorola, Apple v Samsung, and Oracle v Google.
The article can be downloaded below.