How to Prove Damages in Patent, Trademark and Copyright Cases: 2014 Perspective

Brian O’Reilly is a trial attorney that specializes in representing generic companies and individuals in pharmaceutical related cases.  He is a chemist and a registered patent attorney.  He clerked in the District of Delaware, practiced at Cravath, Swaine & Moore, and prior to founding O’Reilly IP represented a number of branded companies in Hatch-Waxman litigations.

Stephen A. Holzen is a Director in the Dispute Advisory & Forensic Services Group. He has experience providing intellectual property consulting services with a focus on valuation and damages in litigation.

Mr. Holzen specializes in intellectual property damages arising from the infringement and misappropriation of patent, copyright, trademark and trade secret rights. He has been designated as an expert witness to testify in patent litigations and has performed valuations of intellectual property in arms-length licensing matters. Many of his past engagements included an evaluation and analysis of financial and economic data in order to quantify lost profits, reasonable royalties, unjust enrichment or diminished business value. He has also provided analytical and corporate finance support to clients engaged in licensing negotiations and business transactions.

Mr. Holzen has written and lectured on methods for determining damages in intellectual property infringement matters, as well as on valuation techniques for intangible assets. He is a registered patent agent and currently serves as the Chair of Local Networking for AIPLA's Patent Agents Committee and is a liaison to AIPLA's New Lawyers' Committee. Prior to joining SRR, Mr. Holzen was a Director at Invotex where he focused his practice on economic damages in patent, trademark and copyright litigations. He also served as a Patent Examiner for six years with the U.S. Patent and Trademark Office within the U.S. Department of Commerce.

Mr. Holzen is a member of the American Intellectual Property Law Association, the Licensing Executives Society, and the National Association of Certified Valuators and Analysts.

Ted Mathias is a partner at Axinn, Veltrop & Harkrider LLP.  He has litigated patent and trade secret cases that involve billion-dollar damages claims, and he recently secured a $16 million verdict – the full amount his client sought.  His clients cover a range of industries, including medical devices, communications, electronics, pharmaceuticals, and consumer products.  Ted previously served as chair of the damages/remedies subcommittee of the ABA Section of Intellectual Property Law and now is chair of the Subcommittee on Willful Infringement.  He currently moderates the Patent Damages group on LinkedIn.com (https://www.linkedin.com/groups/Patent-Damages-6547585/about).

Ted has served as lead counsel in commercial disputes, and has litigated sham litigation, standards setting, patent pooling and IP licensing issues, other Sherman Act claims, insurance coverage and environmental claims. In addition to major trial work, he has represented clients in private dispute resolution proceedings, mediations and government investigations concerning antitrust, unfair competition, false advertising and Internet privacy issues.

Carrie Distler is a Senior Managing Director in FTI’s Forensic and Litigation Consulting segment and a member of the national intellectual property practice.  Ms. Distler has nearly fifteen years of professional experience in consulting and has used her economic, financial and statistical training in various litigation and non-litigation related matters. Further, she has provided expert testimony related to damages.  She is based in Chicago.

Ms. Distler specializes in intellectual property disputes and management, with experience in both litigation and non-litigation related matters, involving patents, trademarks, copyrights, and trade secrets.  In the litigation context, she has performed numerous reasonable royalty and lost profit calculations and valued technology across the pharmaceutical/biotechnology, medical device, printing, electronics, telecommunications, automotive, financial services, heavy equipment and machinery, and consumer products industries.  Reasonable royalty assessments have included complex financial and cost analyses to derive measures of value for patented features, use of comparable licenses to determine royalty rates (including FRAND agreements in standards setting industries), and competitive market evaluations to ascertain impacts of the patented features.  Pharmaceutical related, she has performed analyses related to Paragraph IV challenges and secondary considerations of non-obviousness, and she possesses an in-depth knowledge and understanding of the pharmaceutical market from her experience in providing liability and damage analyses related to average wholesale price litigation across multiple jurisdictions, including the roles and policies of generic and branded manufacturers, wholesalers, pharmacies, and third party payors.  Finally, she has experience in providing market research for assistance in licensing transactions as well as identifying potential infringers of technologies, as well as experience in case management of large, patent enforcement actions involving multiple defendants. 

From a non-litigation standpoint, Ms. Distler has assisted in the design and implementation of a multi-billion dollar corporation’s in-licensing program in an effort to create a streamlined process for evaluating and negotiating licensing opportunities, as well as assisted in evaluating and negotiating patented technology for the purpose of licensing.  She has participated in compliance management projects focused on compensation for technology under the direction of a publicly-appointed Monitor.  For state governments, she has evaluated program impacts, conducted compliance audits, and participated in state-wide surveys for funding allocation purposes. 

Ms. Distler’s dispute advisory experiences encompass the entire litigation process including discovery, damage analysis, preparation of expert reports, deposition and trial testimony. In addition to her intellectual property expertise, she has also worked on forensic investigations, business valuations, shareholder disputes, wrongful terminations and other labor-related matters, econometric and statistical cases, and other general commercial litigation matters. She has extensive experience in performing industry and market analyses and calculating damages based on lost sales, profits and cash flows, incremental profits, business valuations, and unjust enrichment.

Prior to joining FTI Consulting, Ms. Distler spent three years in the consulting practice of Pacey Economics Group in Boulder, Colorado.  Ms. Distler holds an M.A. and B.A. in Economics from the University of Missouri, where she earned an Outstanding Teaching Assistant award.