Apportionment of Patent Damages: What You Need to Know and Do in 2020
Apportionment is an important consideration when quantifying damages in patent litigation, both in lost profits and reasonable royalty cases. In Exmark v. Briggs & Stratton Power Products Group, the Federal Circuit stated “apportionment can be addressed in a variety of ways, including ‘by careful selection of the royalty base to reflect the value added by the patented feature [or] . . . by adjustment of the royalty rate so as to discount the value of a product’s non-patented features; or by a combination thereof’” and “[t]he essential requirement is that the ultimate reasonable royalty award must be based on the incremental value that the patented invention adds to the end product.”
As the patent infringement landscape evolves, companies and their counsel are well served to understand how various district courts and the Court of Appeals for the Federal Circuit have approached the issue of apportionment.
In this LIVE Webcast, patent damages experts Armando Chavez (Echelon Analytics) and Eric Forister (EconOne Research) will provide the audience with an overview of the objective of apportionment of patent damages, examples of the various apportionment methodologies that have been applied, and a discussion of recent and notable cases where the courts have decided on issues related to apportionment.
Key topics include:
- Patent Damages Overview
- Objective of Apportionment
- Apportionment Overview
- Example Apportionment Methodologies
- Application of Apportionment Issues in Selected Cases
Armando Chavez, Director
- Introduction and summary of where we are at the moment
Dr. Eric Forister, Senior Economist
- Types of damage calculations requiring apportionment
- Situations not requiring a separate apportionment calculation
- Recent examples of apportionment accepted and rejected by Courts
Who Should Attend:
- Patent Lawyers and Consultants
- Patent Managers
- IP Consultants and Experts
- Patent Holders
- Corporate Counsel
Armando Chavez serves as an economic damages expert and financial analyst with over 17 years of experience in the assessment of financial issues and determination of damages in litigation. Mr. Chavez has testified in federal and state civil case proceedings and has experience on matters involving intellectual property damages, valuation, breach of contract, business interruption, and licensing and/or sale of assets. Mr. Chavez has also been involved in non-litigation consulting regarding patent licensing.
Mr. Chavez has conducted numerous complex analyses involving reasonable royalty, lost profits, present value, lost sales, incremental profit rates, cost of development, unjust enrichment, lost earnings, profit measurement, manufacturing and marketing capacity, fixed and variable costs, interest on damages, and potential technology/brand licensing or acquisition.
As part of his experience, Mr. Chavez has identified, reviewed and evaluated numerous financial documents including financial statements, business plans, projections, market studies, cost of sales reports, product line profit reports, contracts, forecasts, promotional materials, and license agreements, among others. Mr. Chavez has assisted many companies and law firms in the identification of relevant financial information, in the development of damage claims, and in the review of appropriate financial/damages considerations and related case strategies. Mr. Chavez has prepared or assisted in the preparation of a significant number of expert reports and assessments of claims of damages submitted in litigation. The matters in which Mr. Chavez has consulted have involved Fortune 500, multinational, and mid and small-sized companies across a wide variety of industries, including consumer products, telecommunications, medical/pharmaceutical, sporting equipment, Internet/software, oil & gas, automotive, computer storage, construction, financial services, chemical, entertainment and semiconductor.
Mr. Chavez is a Certified Valuation Analyst (“CVA”), a Master Analyst in Financial Forensics (“MAFF”), and a member of the National Association of Certified Valuation Analysts (“NACVA”). Mr. Chavez is also a member of the Licensing Executives Society (“LES”), which is an organization of more than 5,000 members including corporate executives and professionals involved in the licensing and valuation of patents, trademarks and other intellectual property. Mr. Chavez has served as a lecturer on topics related to damages and valuation of intellectual property including at the Georgetown University Law Center and the Chicago Kent College of Law. Mr. Chavez holds a M.S. and a B.B.A., magna cum laude, in Finance from the Mays Business School at Texas A&M University.
Armando Chavez serves as an economic damages expert and financial analyst with over 17 years of experience in the assessment …
Dr. Eric Forister is an expert economist with testifying experience on market definition, market power, sampling, and damages. His expertise includes applying advanced statistical techniques to datasets, synthesizing information from documents, and designing and evaluating surveys. He focuses on relevant questions to tackle complex issues with an efficient and effective style of communication. Dr. Forister also has extensive experience consulting on issues including royalty rates, lost profits, sampling, survey design, overcharges, common impact, and materiality. He is a Senior Economist at Econ One and can be reached for more information upon request. Learn more at www.econone.com/staff-member/eric-forister
Dr. Eric Forister is an expert economist with testifying experience on market definition, market power, sampling, and damages. His expertise …
Print and review course materials
Method of Presentation:
On-demand Webcast (CLE); Group-Internet Based
General knowledge of patent law
NY Category of CLE Credit:
Areas of Professional Practice
NASBA Field of Study:
Business Law - Technical
1.0 CPE (Not eligible for QAS (On-demand) CPE credits)
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About Echelon Analytics
Echelon Analytics is a nationally recognized leader in economic and financial analysis, expert witness services, financial and forensic investigations, and business consulting. From its offices in Dallas, Houston, Salt Lake City and Los Angeles, the firm works with law firms, corporations, government entities, and private individuals across the United States and internationally in matters involving commercial damages, intellectual property disputes and valuation, and banking and finance litigation.
Echelon assists clients involved in commercial disputes and litigation, as well as those needing help assessing value and risk in the context of pre-litigation, mergers and acquisitions, joint ventures, licensing, and sales. Echelon’s practitioners deliver complex information in an organized and easy-understand way for the users of the information to make important decisions, such as juries, investors, and government agencies. Learn more about Echelon at ea-us.com.
About EconOne Research
Econ One provides economic research and consulting on issues relating to markets, competition, regulation, and valuation. We offer in-house expertise in applied economic theory, econometrics, statistics, market strategies, large-scale project management, electronic data manipulation, and graphics. Our strength is our staff--a diverse group of professionals combining an impressive set of academic credentials with years of experience in the arena of hands-on, practical economic research.