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.
Below is a list of representative engagements for our Intellectual Property practice.
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.
Brattle experts have calculated lost profits and/or reasonable royalties in numerous disputes involving both biologic drugs and conventional pharmaceuticals, including over-the-counter (OTC) drugs. In these engagements, we have provided economic assessments of the but-for world in which the alleged patent infringement did not occur. In constructing this but-for world, we have paid particular attention to the impact of patents on launch timing, the availability of non-infringing alternatives, and the extent to which infringement may have made the drug more attractive relative to competing therapies. We have also evaluated the extent to which the branded drugs’ 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. The analyzed drugs include those used to treat asthma and other respiratory conditions, HIV/AIDS, GERD, and bacterial infections.
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.
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.
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.
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.