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Patent Damages Analysis
The determination of damages for patent infringement by way of a reasonable royalty is no simple matter, typically requiring sophisticated expert opinion testimony. Generally, an accounting, licensing, or economics expert will need to consider evidence relating to as many as 15 separate evidentiary factors which are relevant to the reasonable royalty determination, and be asked to reconstruct a hypothetical negotiation between the parties had they willingly negotiated a royalty prior to the commencement of infringement. He or she must properly determine the bounds of such a hypothetical negotiation, and whether the determined royalty rate should be applied to the value of the entire infringing product, or only to a subset of that product.
Given the complexity of the task, patent damages expert opinion testimony is often the subject of a so-called Daubert motion, where a party seeks to exclude a portion or all of a damages expert's proposed testimony as set forth in his or her expert report under Fed. R. Evid. 702 and/or 703. Faced with such a motion, courts undertake the task of considering whether the expert has formed opinions based on reliable methods, and whether the expert has the suitable, relevant expertise to form the opinions at issue. Even if the Daubert hurdle is met, the expert will face a second challenge in presenting his or her opinions to the court or jury in a credible manner. Several practical tips for meeting these challenges are addressed below.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.