Intellectual Property

Commercial Success

Commercial Success

A firm that is (or expects to be) accused of infringing a patent typically claims the patent is invalid. One legal test for showing invalidity is to demonstrate that the patent claims are "obvious." One legal test for determining obviousness is to consider whether the patented products embodying the patented technology have been commercially successful. The logic is as follows: if the patent was obvious, then someone would already have introduced products to the market with those (or substantially similar) features, thereby causing the patented products to not be successful. Conversely, if one finds that the product is successful, and that that success flows directly from the patented features, then the invention may be presumed to not have been obvious and, therefore, to be valid. In that connection, NERA experts are often asked to evaluate the commercial success of patented products (most often, pharmaceutical products).

Name Title Location Phone Email
Dr. Christine Siegwarth Meyer Senior Managing Director
Chair of NERA's Intellectual Property Practice
White Plains, NY +1 914 448 4119 christine.meyer@nera.com
Dr. Ramsey Shehadeh Senior Managing Director Washington, DC +1 212 345 6089 ramsey.shehadeh@nera.com
Dr. David Blackburn Managing Director Washington, DC +1 202 466 9264 david.blackburn@nera.com
Bryan Ray Director White Plains, NY +1 914 448 4004 bryan.ray@nera.com
Mark L. Berenblut Affiliated Consultant Toronto
New York City
London
+1 416 868 7311
+1 917 475 0020
+44 20 3769 1096
mark.berenblut.affiliate@nera.com
Title Type Author
Supply-Side Data Can Help Product Defect Damages Models Published Article Dr. Daniel Werner
Patent Valuation Using Citations: A Review and Sensitivity Analysis Published Article Dr. Daniel Werner et al.
Tools of Trade—An Introduction to Trade Secret Valuation in Litigation Published Article Kristopher Boushie
Privacy, Pricing, and the Value of Consumer Data: The Complex Nature of the CCPA’s No... Published Article Lawrence Wu
Survey Response Bias and the ‘Privacy Paradox’ Published Article Sarah Butler, Dr. Garrett Glasgow, and Dr. Samantha Iyengar
Latest Daubert Cases, Econ Studies Hold IP Damages Lessons Published Article Dr. Daniel Werner
Disputed Issues in Awarding Unjust Enrichment Damages in Trade Secret Cases Published Article NERA Managing Director Dr. Alan Cox and David S. Almeling, Walter Bratic, Monte Cooper, and P. Anthony Sammi
Unpacking the Economic Toolbox: How to Make Sense of Your Economic Expert’s Analysis Published Article Sheng Li, Christine Meyer and Gabriella Monahova
The Limited Role of Analytical Approach to Reasonable Royalty Published Article Dr. Alan Cox