How to Prove Damages in Patent, Trademark and Copyright Cases

S. Christian Platt is a partner in the Litigation department of Paul Hastings, where he leads the San Diego office’s intellectual property practice. Mr. Platt handles all aspects of complex intellectual property litigation, including patent infringement, trade secret and technology disputes. As a trial lawyer, Mr. Platt has successfully represented some of the world’s largest technology companies in their most complex patent disputes involving, in many instances, more than a billion dollars in potential damages. Mr. Platt routinely speaks and writes on damages issues, and received the 2011 Burton Award for Distinguished Legal Writing. Mr. Platt currently co-chairs the American Intellectual Property Law Association Subcommittee on Patent Damages.

Shawn Fox, CPA/ABV, ASA, CFA has more than 16 years of experience in managing and directing the analysis and forensic investigative efforts related to complex commercial litigation, bankruptcy litigation, valuation disputes, intellectual property infringement litigation, lost profits, commercial damages, insurance coverage disputes, and business disputes. Shawn has significant experience preparing Rule 26 expert reports, assisting counsel and clients in all phase of litigation (including case assessments, discovery, document review, damages analysis, demonstrative exhibits), and testifying as an expert witness.

He has testified on numerous matters at deposition, trial, and arbitration as an expert and has served as a court-appointed receiver. Shawn has worked on significant high stakes litigation matters for organizations in a variety of industries.

Aaron Fahrenkrog is a trial lawyer who litigates patent cases because he enjoys learning about technology and its impact on the business of his clients and their competitors. Mr. Fahrenkrog studied chemical engineering and has a proficiency in learning complex technology in a range of areas including circuit architecture and semiconductor fabrication. He has participated in preparing damage models exceeding a billion dollars on behalf of plaintiffs and has recovered, with a team, hundreds of millions of dollars in patent litigation at a ten-to-one return on investment. He also represents patent infringement defendants and applies the same principles to minimize potential damage awards.

Dr. Blackburn’s areas of expertise include intellectual property, antitrust and competition policy, and econometric analysis. In his IP practice, he has conducted research and prepared expert reports for patent, trademark, and copyright infringement disputes and false and misleading advertising cases, as well as conducted analyses related to the issues of commercial success and preliminary and permanent injunctions. In his antitrust and commercial damages practices, he has assessed liability and damages in disputes related to, for example, tying, price discrimination, monopolization, and breaches of contract. He has also assessed the competitive effects of mergers and acquisitions, as well as issues relating to impact and damages in class action litigation. Dr. Blackburn has written and spoken publically on a number of these issues.

his antitrust and IP practices, Dr. Blackburn has experience critiquing damage models, and designing and providing economic analysis. His experience covers a variety of industries, including computer software, medical devices, pharmaceuticals, natural resources, industrial goods and chemicals, media, consumer products, and financial services, among others.

In addition to being a former litigation group chair and a member of Merchant & Gould’s Executive Committee, Dan McDonald is a seasoned litigator and trial lawyer, representing clients in patent litigation, copyright litigation, trademark/trade dress litigation, and trade secret litigation with an emphasis on electronics, software, and Internet issues. He has represented clients ranging from individual inventors to the British Post Office, in cases involving a broad spectrum of technologies from software, digital imaging, telecommunications, and electronics to apparel, aerospace, printing, and materials handling.

Dan has successfully blocked a patent owner’s claim for over $35 million in patent infringement damages, resulting in an award of $0 affirmed on appeal despite a finding of infringement. The patent owner had previously received over $50 million in damage awards and settlements from other accused infringers. He has obtained an “exceptional” case finding after trying a patent case to verdict, obtaining attorneys’ fees and punitive damages affirmed on appeal. He has also successfully protected a multi-million dollar unfair competition damage award to against post-trial attacks where the award exceeded the amount requested from the jury and the amount stated in expert reports. And, he secured a multi-million dollar payment from a patent owner to a client accused of infringement to settle claims of tortious interference, unfair competition, and inequitable conduct. His book, Protecting Your Company Against the New Era of Patent Infringement Suits, is available for download at amazon.com