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Patent Infringement Damages

The experts of Brattle’s IP practice have extensive experience quantifying economic damages in both lost profits and reasonable royalty cases. We have testified on behalf of both plaintiffs and defendants on damages in a wide range of industries. In lost profits cases, we are recognized for our expertise in using state-of-the-art economic analysis to evaluate the market share and profits that would have accrued to the plaintiff(s) absent the alleged infringement. In reasonable royalty cases, we are experienced in valuing patented technologies using both survey and transactional data, as well as documents, and prior licenses, and in identifying the nexus between a product’s alleged commercial success and the patents at issue. Our experts, including Nobel Prize winner Daniel McFadden, have particular expertise in using conjoint and other types of surveys to collect data and in analyzing these data in order to value of the technology at issue.


Below is a list of representative engagements for our Patent Infringement Damages practice.

Damages analysis in the pharmaceutical industry

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.

Using survey data to assess damages

Brattle experts estimated damages associated with an infringement claim regarding a target device design in a hand held remote thermometer used by heating and cooling system engineers and operators. Our team used the warranty cards submitted by purchasers of the competing devices to determine the value of the patent. The cards provided the identity and contact information necessary to conduct a telephone survey of buyers. The survey instrument was designed to collect information on the price paid, the type of device purchased, and the importance of a set of device features. State of the art statistical analyses were then used to determine the plaintiff’s lost sales. The jury adopted Brattle’s damage estimate.

Damages analysis for a major software company
Brattle assessed damages associated with the company’s alleged infringement of a business methods patent that supported one of the software’s features. We showed that the opposing expert’s proposed royalty figure simply ignored contemporaneous usage data that demonstrated how infrequently the software company’s customers used the allegedly infringing feature. We also demonstrated that this lack of usage was consistent with the minimal advantages that the feature provided to the software company’s customers and the relatively low cost of licenses that the patent-holder had offered for the same invention. This case settled favorably for our client.
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.
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