IP Damages Consulting & Litigation Services
Rogers DVS has extensive experience with IP disputes including patent damages, expert witness testimony, trademark infringement, misappropriation of trade secrets and know-how, and copyright infringement.
We have evaluated/quantified economic damages from both the plaintiff’s and defendant’s position including lost profits, reasonable royalties, price erosion, disgorgement of profits, and convoyed sales damages in a wide variety of industries.
Rogers DVS can provide IP and patent valuation services throughout the entire dispute resolution process, including: pre-filing assessments, discovery assistance (document requests and deposition and cross examination support), damages assessment, expert witness testimony, and alternative dispute resolution services.
Rogers DVS, a certified patent infringement expert witness, analyzes financial, market and other economic data to assist in determining the appropriateness and quantity of damages awarded to the plaintiff, assuming defendant is found liable.
Patent Infringement Litigation
In patent litigation, plaintiffs are entitled to lost profits damages or, alternatively, no less than a reasonable royalty. The amounts of such damages can vary enormously based on the specific facts of each case.
To quantify these damages, Rogers DVS may conduct a thorough analysis of the widely accepted Panduit and/or Georgia-Pacific factors. In addition, the Entire Market Value Rule may need to be considered.
Finally, Rogers DVS has been qualified as an expert in a variety of litigation venues. Whether you are involved in a bench trial or jury trial, Rogers DVS will work to present the damages case in the most concise manner utilizing accepted damages methodology.
The Basics of Determining IP Damages
According to the law (United States Code, Title 35, Chapter 29), the damage award in a patent infringement action must be “…adequate to compensate for the infringement but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court”. The courts created this phrase to allow for compensation of lost profits and other forms of financial damages like price erosion. These types of damages must be proven. When the patent holder cannot prove or chooses not to prove lost profits or price erosion, they are still entitled to a “reasonable royalty”. Estimating lost profits damages is often a complicated analysis that may include confidential information from both parties.
Understanding lost profits
In order to determine if lost profits are an appropriate damage measure the plaintiff must prove the following:
- Demand – There must be a demand for the patented product.
- Absence of non-infringing alternatives – There must be an absence of acceptable non-infringing substitutes for the product. If there are non-infringing substitutes, lost profits may still be recovered if a thorough market share analysis is conducted.
- Manufacturing capacity and marketing capability – The patent holder must have the capacity to manufacture the incremental products (i.e., equipment, space, access to qualified workforce) and the marketing capability to sell the incremental products (i.e., qualified sales force).
- Profit loss amount – The final step to prove lost profits is to actually quantify the amount of profit lost. The patent holder must be able to prove the amount of lost profit to a ‘reasonable certainty’.
Determining profit loss
In order to determine lost profits or design patent infringement one must first analyze what would have happened in the ‘but for’. In other words, what would have happened if there was no infringement. If lost profits were a viable solution then the patent holder would have gained incremental sales if the infringer was excluded from the market. The lost profit is the profit that the patent holder would have made on those incremental sales.
This is a simple explanation of patent damages. It is important to note that the burden of proof is on the plaintiff.
Why You Need An Intellectual Property Expert Witness
Start by Understanding Your Need for Expert Witness Services
An expert witness is needed when facing a legal disagreement over a complicated matter. Judges and juries are not expected to be knowledgeable about the intricacies of every case. It is the job of the litigator to present their case in a clear and understandable format. To do this litigators often require the assistance of experts. Depending on the case both technical and financial damages experts may be required. A technical expert may be needed to help the judge and/or jury understand the technical aspects of a product and to assist in determining whether a product either infringes or does not infringe. The valuation expert will assist the litigator or law firm in showing the judge or jury the amount of monetary damages that should change hands. It is the financial damages expert’s job to assume that the defendant is liable for the infringement and based on that assumption determine the amount of money is appropriate to compensate the plaintiff for that infringement.
In order to assist the judge or jury make a fair and responsible decision, the litigator needs to ensure that they have an effective expert witness. The patent infringement experts will explain their area of expertise in a manner that lay people (i.e., a jury) will be able to understand. This increases the likelihood that the matter will be decided in your favor.
Rogers DVS is a financial expert witness service firm, not a law firm, that specializes in determining financial damages in complex commercial litigation matters; specifically, intellectual property (IP) matters; including patent infringement, copyright infringement, trademark infringement, and misappropriation of trade secrets. Rogers DVS is experienced in handling engagements of all sizes. We adapt our services to meet your needs.
You need to ensure that your litigator has the appropriate expert witnesses you need to go to court to resolve a legal dispute regarding your intellectual property.
Request a Consultation for IP Litigation Support
Rogers DVS is glad to help with your IP litigation, patent damages or expert witness needs. If you would like an IP Valuation Consultant to reach out please complete this form to get in touch with our team today.