Commercial Success

Commercial success is often at the heart of determining a patent’s validity, including in claims brought under the Hatch-Waxman Act and in ITC Section 337 proceedings. In these matters, Analysis Group’s consultants and experts evaluate the two primary components of commercial success: a practicing product’s marketplace success, and the causal nexus between that success and the patented invention.

Our in-house and affiliated experts are skilled at defining absolute and relative marketplace success in many industries, including life sciences (e.g., pharmaceuticals, biosimilars, medical devices) and technology (e.g., smartphone, 4G/5G/LTE, internet). For these analyses, we examine financial and economic data such as shipment and sales trends, market shares, profits, and market entry.

Working closely with technical and industry experts, we also identify the degree to which the attributes of the IP at issue can be translated into marketplace benefits and advantages. Our economic testimony is particularly useful in determining whether technical features or advantages result in attributes (such as ease of use, utility, efficacy, or safety) that influence purchase decisions.

We have worked with legal counsel and their clients in cases that have been heard in district court, in PTAB inter partes review, and by the International Trade Commission (ITC).