One Rung Up the Ladder: How Products That Practice Prior Art Can Inform Lost Profits Calculations

An article co-authored by Karen Gover (Wolf Greenfield), Marie McKiernan (Wolf Greenfield), Animesh Giri (The Brattle Group), Jonathan Lee (The Brattle Group) titled “One Rung Up the Ladder: How Products That Practice Prior Art Can Inform Lost Profits Calculations” was published in les Nouvelles. The article examines how products that practice a patent’s prior art can serve as concrete, market-based benchmarks for lost profits analyses when direct licensing evidence is limited or unreliable.

The authors explain how these “prior art products” can clarify both a plaintiff’s pre-existing market position and a defendant’s available non-infringing alternatives, and how tools like conjoint surveys, hedonic regression, and market modeling can leverage substitution patterns to isolate the value of patented features. Read more.