IP DISPUTES: DAMAGES AND EXPERT WITNESSES
CD: Why has expert evidence become such a decisive factor in modern intellectual property (IP) litigation?
Rosen: Today’s intellectual property (IP) disputes often involve sophisticated and multifaceted technologies that require equally sophisticated economic damages analyses. Courts therefore depend heavily on expert witnesses to explain scientific and technical concepts, evaluate infringement, quantify damages and interpret industry practices across fields such as software, biotechnology, telecommunications and artificial intelligence. Recent court decisions, especially EcoFactor v. Google LLC, illustrate how critical expert evidence has become. In EcoFactor, the Federal Circuit tightened judicial scrutiny of patent damages experts under Rule 702 and Daubert, holding that unsupported licensing assumptions could render testimony inadmissible rather than merely weak but otherwise admissible. The case reinforces that experts must use reliable methodologies grounded directly in documentary evidence and accepted economic principles. As a result, modern IP litigation increasingly turns not only on legal doctrine, but on whether expert testimony survives judicial gatekeeping and persuades judges and juries.
CD: Are damages awards becoming more predictable, or more uncertain, in IP disputes?
Anderson: Damages awards in IP disputes are as uncertain as they have ever been, especially disputes involving patents. Despite the volume of patent damages related case law in the last several years and the recent updates to Rule 702 regarding expert testimony, there are still enough variables in most damages analyses to make handicapping damages awards difficult. Damages experts have attempted to comply with case law developments using several approaches, but there are no formulaic methodologies applicable to damages quantification. Consequently, there is no way to accurately predict how either party will approach the same sets of facts and data to quantify economic damages.
Jul-Sep 2026 issue
StoneTurn