Using Conjoint Analysis to Apportion Patent Damages

Federal Circuit Bar Journal Vol. 24, No. 4 (2016)

40 Pages Posted: 29 May 2018

See all articles by J. Gregory Sidak

J. Gregory Sidak

Criterion Economics, L.L.C.

Jeremy Skog

Criterion Economics

Date Written: 2016

Abstract

Expert economic witnesses increasingly present survey evidence to support their calculations of reasonable-royalty damages in patent-infringement cases. In this article, we assess developments in the case law on the admissibility of expert testimony based on conjoint analysis, which is a particular type of survey analysis commonly used in market research to measure the tradeoffs that consumers make among salient features of a product. In a growing number of cases, experts have used conjoint analysis to estimate consumers’ average willingness to pay for a patented technology. That estimate informs the implementer’s maximum willingness to pay to license the patented technology, which is the upper bound on the bargaining range for a reasonable royalty in a hypothetical negotiation. We identify and analyze the factors that courts have considered when determining whether evidence from an expert’s conjoint survey is admissible. Further, one can use conjoint analysis to argue whether an infringing feature in a multicomponent product drives the demand for that product, which is relevant to the legal test in the United States for determining whether the patent holder may obtain an injunction and for identifying the appropriate royalty base for calculating damages. Decisions by the Federal Circuit and district courts in several disputes between Apple and Samsung indicate that the Federal Circuit has not yet provided comprehensive guidance on how to determine whether a patented feature drives demand for a downstream product for purposes of deciding whether a patent holder may obtain an injunction. Other Federal Circuit decisions indicate that, for purposes of identifying the appropriate royalty base, only evidence that a patented feature motivates consumers to purchase the product at issue will suffice to show that the patented feature drives demand for that downstream product.

Keywords: Expert Economic Witness, Federal Circuit, Antitrust Law, Patent Law

Suggested Citation

Sidak, J. Gregory and Skog, Jeremy, Using Conjoint Analysis to Apportion Patent Damages (2016). Federal Circuit Bar Journal Vol. 24, No. 4 (2016). Available at SSRN: https://ssrn.com/abstract=3176717 or http://dx.doi.org/10.2139/ssrn.3176717

J. Gregory Sidak (Contact Author)

Criterion Economics, L.L.C. ( email )

1717 K Street, N.W.
Washington, DC 20006
United States
(202) 518-5121 (Phone)

HOME PAGE: http://www.criterioneconomics.com

Jeremy Skog

Criterion Economics ( email )

United States

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