AACG economists, statisticians and business experts have extensive experience in patent and copyright disputes through their work on significant cases. The nature of intellectual property continues to evolve. The laws and economic methods used to assess damages are becoming increasingly reliant on scientific theory and methods grounded in economic principles and estimation techniques. Similarly, courts and the United States Court of Appeals for the Federal Circuit are increasingly calling for economic and statistical methods that scientifically measure the demand for the product in question in the absence of infringement. In addition, statistical methods that can identify the contribution of a specific protected product or component are now needed to prove damages. On the cost side of the profit equation, rigorous methods to determine the additional costs associated with the lost sales are required in determining lost profits.

These heightened standards in measuring product sales, contribution of the patented item to sales and the value of those sales, and analysis of marginal cost of lost sales require a deep understanding of economics and the statistical methods needed to measure each of these components of damage in intellectual property cases.

AACG brings the depth of knowledge in economics, statistics and large-scale data acquisition needed to answer these and other critical issues in intellectual property disputes and to explain the fundamental building blocks of these methods clearly, so they can be understood by a broad audience. Our experts have extensive experience in the following areas:

Litigation Support Services

AACG provides expert analysis in the following areas of intellectual property:

  • Demand for protected IP and/or embodied product
    • Regression models, including hedonic
    • Survey methods
  • But-for market without infringement
  • Identification of marginal cost of production
    • Accounting
    • Economic
  • Production capacity impacts
  • Disgorgement
  • Lost profits
  • Incidence of infringement
    • Quantification of infringing exposure
      • Online monitoring and data capture
  • Data analysis
  • Value of litigation analysis and litigation strategy

Selected Experience

Patent Infringement

Infringement of Cost Reducing Technology in the Container Industry
In a patent dispute involving a manufacturing process, economists now at AACG determined the magnitude of the sales associated with the disputed technology, the cost savings, and the overall profits captured based on the disputed technology.

Infringement of One Feature of a Machine Tool
In a patent case involving industrial tools, economists now at AACG analyzed the tools market and sales patterns to determine what the but-for sales of the infringing products and competing technologies would have been. The analysis involved a quantification of costs of production, and ability and capacity of the claimed patent holder to manufacture the tool. AACG economists evaluated a survey conducted by another economist in an effort to determine the value of the specific patented feature of the industrial tool, as distinct from the rest of the product attributes.

Antitrust Counterclaim to Patent Infringement
In an antitrust counterclaim to a patent dispute, involving computer disc drives, economists now at AACG measured the level of competition in the market to determine pricing power.

Complex Markets in Medical Devices
In multiple cases involving medical implants and related surgical devices, AACG measured the degree of competition between various competing products to determine the extent of additional sales that the patent holder would have achieved in the absence of the alleged patent infringement. The analysis measured competition between various devices, including non-infringing devices manufactured by the alleged infringer. Other medically distinct surgical options were also included in the analysis of competition in the market. In addition, marginal costs of production derived from data about research and development functions, other general administrative costs, and direct manufacturing processes located in various countries were used to measure marginal costs of production. These marginal costs of production were included in the overall calculation of profits.

Diagnostic Devices, Competing Products and Competing Technologies
In the medical technology industry, economists now at AACG evaluated competition among existing imaging devices on the market. The analysis included a study of the technologies available for the specific type of imaging, as well as other technologies used to diagnose the same pathologies. Marginal costs of production were used to determine potential lost profits from the alleged patent infringement.

Commercial Success in the Pharmaceutical Industry
In a matter involving a major pharmaceutical manufacturer in a patent dispute, AACG evaluated the commercial success and the extent to which the sales of a product can be generated by advertising as opposed to underlying unique characteristics of the product.

Sales Attribution in Motor Vehicles
For a manufacturer of motor vehicles, AACG estimated the value of a component part that was claimed to be a key feature in determining the sales of the product. The analysis involved statistical regression methods that compared the differences in prices for vehicles with the patented component to those vehicles without the patented component. Volumes of sales were also included in the analysis.

Copyright Infringement

Copyright on the Web
For a major manufacturer of home goods, AACG analyzed claims of copyright infringement related to web presence, social media and user-generated content websites. The analysis involved capturing and analyzing web-related content and quantifying damages based on the impact this content had on sales for individual products and the company as a whole.

Copyright in Computer Code
AACG provided expert support for Oracle in its copyright infringement case against SAP. AACG experts provided statistical analysis and rebuttal testimony related to marginal costs of production and damage. The analysis involved developing statistical samples of copyrighted material to review and then providing an estimate of the total number of copyright infringements based on a statistical extrapolation from the sample to the population as a whole. At the core of the marginal cost analysis was AACG’s review of a regression analysis performed by another expert, and a demonstration that an over-reaching restriction in that regression analysis caused bias in the results so severe as to completely invalidate them.

In a second copyright case, AACG investigated the prevalence of copyright infringement involving computer code that was downloaded by the infringing company from the copyright owner’s website. AACG developed the statistical sampling process to randomly select specific instances of recorded downloads for review of copyright infringement. Based on the findings from the scientific sample, AACG provided estimates of the number of incidents of copyright infringement.

Misappropriation of Proprietary Computer Program
In a case involving the theft of a computer program, AACG developed estimates of the costs that would have been associated with the construction of alternative software that would not have infringed the copyrighted code. The research included a detailed analysis of the costs required to construct the original code, including research and development, hardware, coding, maintenance and ongoing enhancements.

Copyright Infringement through Video Posting
In a dispute involving a claim of copyright infringement of video material posted to a website, AACG performed statistical analysis to determine the extent of the infringement, including the number of views. As part of the analysis AACG investigated whether there was any scientifically valid reason that the results from plaintiffs’ statistician, from a sampled population, could be extended beyond the population from which the sample was taken.

Contact Our Intellectual Property Experts

Daniel S. Levy, PhD
National Managing Director
617 901 6344
Profile | E-mail

Timothy J. Tardiff, PhD
Principal
617 827 4043
Profile | CV | E-mail

Karthik Padmanabhan,
MBA, MS

Principal
312 551 9001
Profile | CV | E-mail

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