is a Director at RGL Forensics. He focuses specifically on the quantification and analysis of economic damages and valuation of assets in matters related to patent, trade secret, trademark and copyright infringement; breach of contract and other commercial disputes; construction disputes; and alter ego and other forensic accounting. Pedigo has performed intellectual property royalty audits and has provided intellectual property royalty rate consulting for clients who are negotiating licensing agreements. Prior to forensic accounting, Pedigo worked in internal audit for an international oil and gas company.
For more information, or to contact Mr. Pedigo, please visit his company profile page.
Courts consistently focus on the availability of non-infringing substitutes as of the date of the hypothetical negotiation. In most of the cases reviewed, the determination of available substitutes was limited to those available at the date of first infringement. If an alternative introduced after the hypothetical negotiation was considered, its impact was discounted to reflect uncertainty as of the date of the negotiation. For example cases, please contact the author. From a review of the above cases, it is clear that the book of wisdom can be relevant and useful, but it is not always allowed by courts. Use and acceptance of the book of wisdom is case and court specific.
In the calculation of design patent infringer profits, two key issues are the definition of the article of manufacture and the methodology for calculating total infringer profits… Depending upon the case, infringer profits may be based on the entire accused product or may be limited to a component of the accused product, but there is no test or guidance at this point for how to determine if the entire product is the article of manufacture or if only a component or certain components comprise the article of manufacture. Therefore, it may be prudent, depending upon the case, to calculate infringer profits based on one or more alternative assumptions as to what the article of manufacture is comprised of in the specific situation. In some cases, the design patent will cover most or all of the product in question but in other cases such as in the Apple case, it will cover only a minor portion of the product.