Reflections on IP Damages - 2011

REFLECTIONS ON IP DAMAGES

Lit.Econ’s economists and accountants specialize in providing highly qualified expert assistance and testimony for attorneys in a wide variety of business litigation cases. Whether it is determining a plaintiff’s economic damages “but for” some event, or evaluating a plaintiff’s claim and preparing an alternative calculation, the professionals at Lit.Econ LLP can provide the necessary expertise in all phases of the litigation process at a reasonable cost to the client. The following are recent examples of intellectual prop- erty disputes in which Lit.Econ LLP has provided expertise.

PATENT INFRINGEMENT CASE

H. & R. Block is the owner of several patents relating to an online real-time credit card appli- cation process. Block filed suit against LendingTree.com for patent infringement. Block alleged that LendingTree.com infringed its patents by matching mortgage loans and bank rates with consumers through its widely accessed website. Lit.Econ LLP was retained by Block to determine a reasonable royalty and related economic damages from the alleged patent infringement. Our professionals worked for two years on this case, examining different damage models based on changing court deter- minations of the LendingTree products that may have infringed Block’s patents.

PATENT INFRINGEMENT CASE

The patent owner in this litigation was a corpo- ration engaged in designing, developing, manufacturing and selling technically advanced ambulatory drug delivery systems. The patent owner filed suit against a competing company which had recently begun selling similar drug delivery systems for infringement of certain claims of a single patent owned by the plaintiff as well as the misappropriation of trade secrets and unfair competition. Lit.Econ accountants determined lost profits damages as well as a reasonable royalty rate. We testified at trial on monetary damages. The plaintiff prevailed in its case of patent infringement and was awarded monetary damages.

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TRADEMARK INFRINGEMENT CASE

A professional services corporation engaged in the business of providing legal, paralegal and non- attorney advocacy services in the field of social security disability benefits filed a lawsuit for trademark infringement, trademark dilution, false representation and unfair competition against a start up competing service provider. It was alleged that the competing service provider infringed the plaintiff’s marks by using copies, variations, reproductions, simulations or colorable imitations of the plaintiffs’ registered marks in connection with advertising and offering for sale the competing service providers’ services pursuant to its use of internet keyword advertising services. Lit.Econ accountants analyzed the profitability of the plain- tiff’s services and utilizing sales data produced by the competing service provider determined damages suffered on the basis of lost profits. We testified on damages at trial and the plaintiff was awarded its lost profits as determined by Lit.Econ. 

PATENT INFRINGEMENT CASE

The patent owner, Bacus Laboratories, Inc., is engaged in the business of producing and sell- ing a virtual microscopy product for the education and telepathology markets. Bacus filed suit against Aperio Technologies, Inc., a leading provider of scanners and software in the field of digital microscopic slide imaging. VM systems are able to scan entire microscope slides at a high resolution, generally without operator intervention, creating near-seamless virtual slides that can be viewed remotely through a network using specialized client/server software. Lit.Econ LLP was retained by the defendant to determine a reasonable royalty and address claims of price erosion by the plaintiff. The case was settled.

INTELLECTUAL PROPERTY DAMAGES

A large multinational insurance company had an in-house equity investment group that was taken away by a rival company. The insurance company lost not only its core investment management group, but also all of the intellectual property asso- ciated with its investment in the equity management group. It also lost billions of dollars worth of assets under management that followed the investment managers to another company. The insurance company filed suit against its rival for conspiring with the former equity managers to take away its people, intellectual property and damages associated with the lost assets under management. Our team of professionals worked for many months on this case to prepare an economic dam- ages model used in mediation. The case settled.