Antitrust and "Intellectual Property"

Antitrust & Intellectual Property

Litigation, arbitration, and consulting support

When antitrust and IP issues converge, interplay between the two areas will significantly impact your liability and damages arguments. CRA offers a team of world-class economists who specialize in cases that require expertise in antitrust and intellectual property. Our experts have provided oral and written expert testimony in hundreds of legal disputes involving intertwined IP and antitrust issues.

Our expertise

IP-Antitrust testimony and consulting

CRA is an acknowledged leader in providing economic analysis, advice, and testimony for antitrust cases. Since 1965, we have provided advanced economic analysis in a wide array of disputes throughout the United States, Canada, Europe, and Australia. We also have long experience in providing economic analysis, advice, and testimony for IP disputes, including patent infringement, misappropriation of trade secrets, and antitrust counterclaims. The economists within our IP-Antitrust group combine those two areas of expertise, analyzing markets, firm behavior, and competition in relation to IP rights.

Damages calculation

Our experts have assessed damages in thousands of disputes, including civil litigations, arbitrations, administrative proceedings, and international arbitrations. In particular, CRA’s expert damages analysis has been used for breach of FRAND cases, SEP infringement matters, pharmaceutical pay-for-delay settlement cases, and antitrust counterclaims.

Services

Litigation and arbitration

Outside and in-house counsel turn to CRA when they need a deep bench of high caliber economists who specialize in cases that combine IP and antitrust. Our expertise includes litigation and arbitration disputes involving:

  • Breach of contract
  • Commercial disputes
  • False advertising
  • Lanham Act
  • Market definition
  • Patent/trademark/copyright infringement
  • Pricing Pay-for-delay/reverse payment
  • Unfair competition
  • Violation of trade secrets
  • Walker process/antitrust counterclaims
  • Licensing consulting and litigation avoidance

SEP holders and standards implementers turn to CRA’s IP and antitrust experts when they need economic analysis to support FRAND licensing offers.

  • FRAND benchmarking
  • Statistical assessment of SEP portfolios
  • Comparable licenses analysis

Sample engagements

Licensing consulting
A semiconductor chip maker retained CRA to assess license offers made and quantitatively asses a FRAND range for the SEPs. CRA performed calculations and helped avoid litigation by assisting the client in negotiating a successful license.

Antitrust Counterclaims
CRA was engaged by a start-up FinTech software company sued for patent infringement by an industry incumbent. CRA’s expert filed a report supporting the counterclaimant’s antitrust/Walker Process allegations. Cases of this sort are regularly on the roster for CRA experts within the IP-Antitrust group, including analyzing market definition, merits, and damages (lost profits and other damages) allegedly associated with monopolization, market allocation, group boycott, exclusive dealing, product tying, technological tying, patent misuse, Walker Process violations, and price discrimination counterclaims.

Patent pool litigation
A CRA expert was retained to provide expert support and testimony in a matter involving several large electronics manufacturers that had contributed patents to a patent licensing pool and who were accused of violating Sections 1 and 2 of the Sherman Act. This case represented a new application of antitrust to IP—pulling in the patent pool administrator as a conspirator in a breach of FRAND. The case favorably settled with the accused infringer taking a full license to the patent pool.

FRAND litigation
CRA experts have been retained in a number of breach of FRAND and SEP infringement matters, including the Microsoft Corp. v. Motorola Inc., the first decision in which a U.S. court determined a fair, reasonable, and non-discriminatory royalty for the use of a SEP portfolio.

Pay-for-Delay
CRA experts have been retained in many of the leading antitrust matters involving allegations of reverse payments in settlement agreements between branded drug firms and generics, including Cipro, Cardizem, K-Dur, Modafinil, Nexium, and Adderall XR.

Pharmaceutical product hopping
CRA experts have been involved in both economic amicus briefs and expert testimony regarding product hopping/evergreening product introductions in the pharmaceuticals space.