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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.
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.
Judge Rules Shaquille O'Neal Will Face Securities Lawsuit for Promotion, Sale of NFTs
A federal district court in Miami, FL, has ruled that former National Basketball Association star Shaquille O'Neal will have to face a lawsuit over his promotion of unregistered securities in the form of cryptocurrency tokens and that he was a "seller" of these unregistered securities.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
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.
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.