Brattle’s Intellectual Property Practice: Highlights from 2022
The past year was an eventful one for Brattle’s Intellectual Property (IP) practice! Our team has been busy with matters before the US International Trade Commission (ITC) and US and China district courts, and beyond our casework, we’ve authored industry papers and filings. We are honored to have contributed to several important and interesting matters in 2022 and would like to thank our clients for partnering with Brattle.
Read on to learn about highlights from our practice’s work last year. We look forward to collaborating with you in 2023!
Case Highlights from 2022
ITC
Principals Dr. Pallavi Seth and Dr. Coleman Bazelon assisted counsel for complainants Hyundai Motor Company and Kia Corporation in two ITC patent infringement investigations. The investigations involved 21 Hyundai patents and 20 Kia patents related to the design of automotive headlamps and tail lamps. Led by Dr. Seth, Dr. Bazelon’s expert reports examined domestic industry investments by Hyundai and Kia and the commercial success of the asserted patents. In the first interim Initial Determination (ID) proceeding, Dr. Bazelon provided trial testimony, which Chief Administrative Law Judge Clark S. Cheney cited extensively in the ID that found that economic domestic industry had been satisfied by both Hyundai and Kia.
In another patent infringement matter at the ITC, Dr. Seth and Dr. Bazelon assisted counsel for respondent adidas AG. The asserted patents related to knitted footwear design and manufacturing technology – namely, the “Flyknit” knitted upper shoe technology of the complainant, Nike. Led by Dr. Seth and Senior Associate Dr. Animesh Giri, the Brattle team supported Dr. Bazelon’s expert reports analyzing domestic industry investments by Nike, commercial success, remedy, and bond. The investigation was resolved successfully via settlement.
Damages
Principal Emeritus Dr. Kevin Neels submitted expert testimony on behalf of Intel in the District Court of Delaware in a lawsuit brought by PACT XPP against Intel regarding alleged patent infringement by certain functions of Intel’s central processing units (CPUs). Led by Dr. Seth, the Brattle team demonstrated that the plaintiff’s expert’s methods to determine price changes for CPUs without the patented features were based on inappropriate economic modeling techniques. Brattle then analyzed the plaintiff’s expert’s application of the Georgia-Pacific factors to the case. Brattle showed that the plaintiff’s approach incorrectly credited the plaintiff for investments made by Intel, which significantly overstated reasonable royalty damages.
Dr. Bazelon testified on behalf of Finesse Wireless in a patent infringement lawsuit against AT&T. The matter involved a complex valuation of the benefits of radio interference cancellation technology embedded in the patents at issue. The valuation involved translating the technology’s interference-cancelling capabilities into an amount of radio spectrum salvaged and then applying a well-established spectrum valuation method. Consistent with Dr. Bazelon’s analysis and testimony, the jury verdict required AT&T to pay $166,303,391 to Finesse Wireless – the exact damages amount proposed by Dr. Bazelon.
Principal Dr. Vanessa Yanhua Zhang and Prof. Dr. John Gong submitted an expert report to Tianhe District People’s Court of Guangzhou, China, for damages valuation on behalf of NetEase in an anti-unfair competition lawsuit. The lawsuit was filed against a gaming rental platform for violations involving one of NetEase’s copyright-protected games. In the expert report, the Brattle team innovatively used statistical and machine learning methods to estimate the economic damages caused by the defendant’s alleged conduct.
On behalf of Teva Pharmaceuticals (Teva), Principals Dr. Lisa Cameron and Dr. Mark Berkman assessed lost profit and reasonable royalty damages owed by Eli Lilly (Lilly) in a patent dispute involving Lilly’s Emgality, a branded biologic drug for the treatment of migraine headaches. Having infringed key Teva patents, Lilly launched Emgality in direct competition with Teva’s own branded biologic migraine drug, Ajovy. Thus, Brattle’s damages analysis focused on the role of payers/pharmacy benefit managers (PBMs) in mediating competition among drug manufacturers. Brattle’s expert reports quantified these impacts using data on the parties’ experience negotiating with individual formularies and data from company financial records and strategic plans. The jury verdict awarded Teva over $175 million in lost profits and reasonable royalty damages.
FRAND
Dr. Bazelon, Principal Dr. Paroma Sanyal, Senior Consultant Dr. Douglas Frank, and Senior Associate Dr. Yong Paek completed a study for Unified Patents in which they calculated fair, reasonable, and non-discriminatory (FRAND) royalty rates for wireless standard essential patents (SEPs) for both 4G/LTE and 5G in vehicles. The Brattle team calculated rates for vehicles using long-term evolution (LTE) handset rates – adjusted for the differences in usage and capabilities – as a benchmark.
The authors used two distinct approaches to obtain an independent FRAND rate. The first approach identified the telematics control unit (TCU) as the vehicle’s center of connectivity and calculated a FRAND rate for a comparable handset, adjusted for the lower connectivity and usage requirements of vehicles. The second approach used consumers’ relative willingness to pay for wireless connectivity in different applications as an indicator of the relative value of a 4G license in those applications and found that consumers value connectivity in vehicles significantly less than in handsets. The two approaches yielded generally convergent estimates. The Brattle authors also found that, because vehicles are unlikely to require wireless capabilities beyond those enabled by 4G for the foreseeable future, the incremental value of a license for 5G capabilities over a license for 4G capabilities is essentially zero.
