The Use of Conjoint Analysis in High-Stakes Litigation

Journal of the Patent and Trademark Office Society, 2022

Conjoint analysis – a marketing science tool that combines surveys with statistical modeling – has been used with increasing frequency in litigation. Because conjoint analysis allows experts to probe consumer choices and make inferences about the value consumers place on particular product features, it has become especially popular in class certification disputes and damages assessments. Since courts appear to reject conjoint analyses often, careful attention to their design and implementation is increasingly critical.

In “The Use of Conjoint Analysis in High-Stakes Litigation,” an award-winning article published in the Journal of the Patent and Trademark Office Society (JPTOS), Analysis Group Manager George Derpanopoulos and two coauthors provide a thorough examination of conjoint analysis and its suitability for litigation. After reviewing the mechanics of conjoint analysis, the authors trace the history of its use in high-profile litigation matters in areas such as patent infringement, product liability, and false advertising. The authors then focus on the landmark case of Annette Navarro, et al. v. The Procter & Gamble Company, et al., the first copyright infringement case in which conjoint analysis was used to apportion damages to the allegedly infringing product feature. The conjoint analysis in Navarro was subject to, and withstood, a rigorous Daubert challenge from the opposing party. The authors conclude by summarizing best practices and evaluating the tool’s prospects in future litigation.

The article won the JPTOS’s Rossman Memorial Award, for the article that makes “the greatest contribution to the field of patents, trademarks, or copyrights.” The authors chose to donate the proceeds from the award to a nonprofit cancer research organization.

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Derpanopoulos G, Overmann, J, Wazzan C