IP Litigation Research Services, Design Patent Surveys & The Empirical Ordinary Observer Test For Leading Corporations and Law Firms Since 1975

Over the past 50+ years we have executed many complex intellectual property litigation consulting projects and served as expert witnesses for the most demanding and high-visibility clients and law firms. Throughout this long history we have participated in major design patent, utility patent, copyright and trade dress cases representing Apple, Nike, Dyson, Qualcomm, Microsoft and many other leading high-technology entities. By working directly with senior partners at top-tier law firms we have learned that there is no substitute for intellectual rigor and attention to detail.

To that end, we offer a series of specialized services to leading legal teams facing complex IP litigation matters where the outcome may impact fundamental business performance. The following is a short description of the research services we offer clients designed to improve legal outcomes in an increasingly complex litigation environment.
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Improving Litigation Outcomes Using Surveys and Empirical Ordinary Observer Research Methods

Design patent litigation has rapidly become even more complex and uncertain based on the improper application of the ordinary observer test at MSJ and trial. Recently, courts have begun accepting formal survey methods explicitly focused on the impact and association of design in the context of design patent litigation. It is well understood that objectively assessing how the ordinary observer views products related to substantial similarity is far more complex than previously assumed. To address this vexing problem, our research division has developed the world’s first fully-validated design patent survey, the Empirical Ordinary Observer Test (EOOT). The U.S. Courts have recently accepted the methodology. The EOOT design patent survey methodology provides legal teams with objective, survey-based data on whether a large sample of ordinary observers (consumers) rates two products as substantially the same. The EOOT design patent survey methodology reduces reliance on conflicting design experts and is an empirical view of consumer response. For the first time, the EOOT design patent survey methodology brings to the finder of fact scientifically valid data on how the actual consumer rates substantial similarity of patented vs. accused products. EOOT is a highly structured design patent survey methodology based on modern neuroscience that provides demanding legal teams with consumer research on the questions of substantial similarity and the value of design in the context of damages. Clients utilize the EOOT before filing litigation, as a component of MSJ, and in support of legal strategy at trial. EOOT is a robust design patent survey methodology for assessing the likelihood of success in complex design patent litigation.

Read our EOOT validation paper here.

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Below is a list of other intellectual property litigation consulting services we offer, each accompanied by a brief description. If you have additional questions or would like to contact our firm about specific research needs, please click here.

Copyright: Empirical Substantial Similarity Test (ESST)

The use of copyright as a framework for protecting physical products and other design content is rapidly expanding. This trend and recent significant decisions emphasize the need for objective research data to support your legal strategy. Increasing evidence shows that using academic experts leaves juries confused and without understandable data for critical decision-making. Utilizing the validated framework developed for the Empirical Ordinary Observer Test (above), our research team designed and validated the world’s first Empirical Substantial Similarity Test (ESST) for use in complex copyright litigation. ESST provides legal teams with objective, survey-based data on how a large sample of consumers rate the substantial similarity of copyrighted subject matter, including products, music, and other creative content suitable for data capture utilizing our advanced survey methodology. This structured survey system is based on modern neuroscience and provides demanding legal teams with robust science-based consumer research on substantial similarity for copyrighted creative content. The ESST methodology is specifically designed to reduce reliance on academic experts in copyright litigation and bring to the finder of fact scientifically valid data on how the actual consumer of copyrighted materials judges substantial similarity. Clients utilize the ESST before filing litigation as a component of MSJ and in support of their legal strategy at trial. ESST is a robust methodology for assessing the likelihood of success in complex copyright litigation.

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Trademark: Empirical Trademark Likelihood of Confusion and Secondary Meaning Test (ETMT)

Utilizing the validated framework developed for the Empirical Ordinary Observer Test, our research team has designed and validated the world’s first Empirical Trademark Likelihood of Confusion and Secondary Meaning Test survey methodology. The ETMT provides legal teams with objective, survey-based data on how a large sample of potential purchasers/consumers rate the confusion and secondary meaning of trademark materials, including all acceptable trademark content suitable for data capture utilizing our advanced survey methodology. This structured survey methodology based on modern neuroscience provides demanding legal teams with robust science-based consumer research on the likelihood of confusion and secondary meaning for trademarked content. The ETMT methodology is also explicitly designed to reduce reliance on academic experts in trademark litigation and to therefore bring to the finder of fact scientifically valid data on how the potential purchaser/consumer exhibits a likelihood of confusion or reports secondary meaning. Clients utilize the ETMT before filing litigation as a component of MSJ and in support of their legal strategy at trial. ETMT is a robust methodology for assessing the likelihood of success in complex trademark litigation.

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Trade Dress: Empirical Trade Dress Likelihood of Confusion and Secondary Meaning Test (ETDT)

Utilizing the validated framework developed for the Empirical Ordinary Observer Test, our research team has designed and validated the world’s first Empirical Trade Dress Likelihood of Confusion and Secondary Meaning Test survey methodology, explicitly focusing on trade dress matters. The ETDT provides legal teams with objective, survey-based data on how a large sample of potential purchasers/consumers rate the confusion and secondary meaning of trade dress materials, including all acceptable trade dress content suitable for data capture utilizing our advanced survey methodology. This structured survey methodology based on modern neuroscience provides demanding legal teams with robust science-based consumer research on the likelihood of confusion and secondary meaning for trade dress content. The ETDT methodology is specifically designed to reduce reliance on academic experts in trade dress litigation and to therefore bring to the finder of fact scientifically valid data on how the potential purchaser/consumer of trade dress materials rates both confusion and secondary meaning. Clients utilize the ETDT before filing litigation as a component of MSJ and in support of their legal strategy at trial. ETDT is a robust methodology for assessing the likelihood of success in complex trade dress litigation.

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Trade Dress: Advanced Eye-Tracking Analysis

Study participants recruited to be representative consumers view images of the designs of interest (plaintiff’s product, accused product, and control) on a computer screen in a research lab for multiple trials while their eye movements are tracked with professional-grade equipment. Upon completion of data capture, visual gaze exhibited by participants on the important components of the products are analyzed to determine whether the designs elicit similar or distinct visual attention patterns according to standard eye-tracking key performance indicator metrics. We use advanced statistical methods to reliably draw conclusions about the eye-tracking data patterns observed to address core trade dress legal questions.

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Utility Patents: Empirical Utility Patent Test (EUPT)

Providing objective research on critical utility patent legal issues has long been a challenge for legal teams on both sides of complex cases. Our research team designed and validated the world’s first Empirical Utility Patent Test (EUPT) based on client requests. EUPT provides legal teams with objective, survey-based data on how persons of ordinary skill in the art rate utility patent claims on the dimensions of 101, 102, 103, and 112. For the first time, this structured survey methodology provides demanding legal teams with robust science-based research on several dimensions of utility patent litigation. The EUPT methodology is specifically designed to reduce reliance on academic experts in utility patent litigation and bring to the finder of fact scientifically valid data on how actual persons of ordinary skill in the art respond to critical utility patent litigation questions. Clients utilize the EUPT before filing litigation, as a component of claim construction, as a component of MSJ, and to support their legal strategy at trial. EUPT is a robust methodology for assessing the likelihood of success in complex utility patent litigation.

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Specialized IP Litigation Research Studies

We are known industry-wide for our exceptional and creative research study design capability. If you have an unusual question, our research team can employ combinations of advanced neuroscience-based methodologies to create new surveys and/or lab-based studies to address IP research questions outside the scope of the traditional IP litigation tests described above. We are frequently retained to conduct IP research studies to answer complex or unusual questions about consumer response in the marketplace. Our team comprises experts in research design, survey design, statistical analysis, human factors science, neuroscience, and product design. We remain an industry leader in applying neuroscience-based research methods to complex IP litigation questions. Below is a list of validated and advanced testing methods for answering your most difficult questions. We also maintain the most extensive professional research library in human factors science, including a comprehensive database of published scientific articles.

Advanced, Fully-validated Methods For IP Research Questions

• Complex survey rating/response collection & advanced statistical analysis
• High-performance eye-tracking (Screen-based / Glasses)
• Micro-facial expression analysis (Deep emotional response)
• Neuroaesthetics and shape perception science
• Galvanic Skin Response (Non-biased emotional response)
• EEG Electroencephalography (Brain cortex activity)
• Newtonian force measurement
• 3D spatial tracking
• EMG high data rate electromyography (physical effort)
• Photo-telemetry data capture for whole-body behavior tracking (Gait and motion)
• Information foraging and learning theory (Cognitive modeling tools)
• Cognitive workload analysis (Multiple modes)
• Physical Anthropometry Analysis (Functional limitations)
• Advanced literature search and opinion formation from existing data

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Pre-Complaint Rapid Infringement Assessment

When clients are considering IP litigation prior to the filing of a formal complaint there is often the question of the strength of a given case. To aid in answering this complex question we offer legal teams an independent infringement and/or exposure assessment based on our deep experience covering our areas of expertise. Both plaintiff and potential defendant legal teams can utilize a pre-complaint infringement assessment. This assessment allows the legal team to preview the way leading experts approach the critical infringement variables. This form of analysis can be highly effective means of understanding the complex issues only subject matter experts will surface once litigation is instituted. This expertise can be combined with robust consumer testing and/or expert polling research to determine, in advance of litigation, how key issues may be addressed by opposing teams of experts.
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Prior Art Research and Analysis (Unconventional Sources)

There have been firms that specialize in prior art searches for decades. However, in certain complex design patent and copyright cases such firms often apply a standardized utility patent search model to the conduct of design patent prior art searches. As a result, these firms routinely fail to isolate important prior art that may be a critical aspect of legal strategy on either side of the case. This is especially important in design patent and copyright litigation where imperative prior art does not always reside in online sources but is found in other media that form the basis of the design literature. In this context we offer robust and comprehensive prior art search expertise, always operating with a detailed knowledge of the case and related underlying legal concepts.
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Consumer Research for the Ordinary Observer Test

Actual consumer research has not been utilized effectively in design patent cases to add rigor or reliability to the required ordinary observer test. Research into this issue shows that the reason is simply that prior attempts to use consumer research which focused on the design patent ordinary observer test was of generally low quality and failed to meet federal guidelines for acceptance of survey data in a court of law. Our firm has been a leading proponent in the use of advanced consumer testing in design patent cases. We have conducted independent, consumer-based research focused on supporting expert opinions related to the ordinary observer test through the application of robust and fully supportable testing methods. To this end, we offer legal teams involved in important design patent litigation access to our specialized consumer testing services, which are based on meeting the 5 key standards required for acceptance of research data in a court of law.
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Design Patent Damages Research and Strategy

Since the SCOTUS decision in Apple v. Samsung, damages calculations in design patent cases have become increasingly complex. The likelihood that legal teams will rely on inappropriate and outdated research methods utilized in utility patent cases is a serious concern. Legal teams that employ traditional survey methods from utility patent cases are exposing their clients to potentially serious errors and problems because such methods categorically undervalue visual design as a product attribute. We are highly experienced in the proper and reliable methods for determining the objective value of visual design in the context of consumer decision-making. This is not a research question for the traditional utility patent survey expert. To this end, we offer legal teams robust and supportable methods for assigning value to design in the context of Rule 289 and the now required article of manufacture test.
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Consumer Research for Copyright Infringement Analysis

For decades consumer surveys have been utilized in copyright infringement cases. Many of the studies proffered historically and today are of generally poor quality and are not designed to meet federal guidelines for survey data admissible in court. However, the problems with traditional copyright surveys and associated experts is more about use of methods that do not accurately represent how the judge or jury actually consider and make decisions about whether or not two works are substantially the same in terms of overall concept and feel. Now, it is possible, based on the application of new advanced consumer testing methods, to provide legal teams with studies that are technically and scientifically robust and more accurately simulate the decision-making experience of the finder of fact. To this end, we offer legal teams faced with complex copyright litigation a research methodology that is both defensible and appropriately representative of the jury experience when assessing copyright infringement.
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Specialized Trial Visual Aid and Demonstration Development

All major IP cases require complex and highly effective visual and technical aids to communicate critical innovations and related claims to the finder of fact. Today, most litigation teams rely on specialized companies to create visual and technical support aids for trial. Almost exclusively, graphic artists with minimal technical expertise staff such firms. This often leads to a costly and highly repetitive revision process during the development of trial demonstration aids and time wasted by the legal team ensuring that the designated materials properly convey critical concepts. Over the past 50 years as a leading human factors engineering and product design firm we have developed a robust and highly effective expertise profile in the design and development of complex product simulations and related graphic information presentation displays. This specialized expertise makes it possible for our team to understand, design and develop trial aids that accurately and in a compelling manner convey to the jury the critical aspects of a patented invention. To this end, we offer legal teams research and development of trial aids and functional concept simulations that are robust and technically accurate.
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Trial Narrative Testing

Presenting a clear, concise, and tested trial narrative to the jury is essential to success during trial in any IP case. This involves bringing together all important aspects of the case into a narrative that can be presented to the jury, thus allowing them to evaluate all of the evidence and determine their verdict. To aid in development of effective trial narratives we offer legal teams the implementation of robust specialized testing methodologies such as Galvanic skin response (GSR), micro-facial expression analysis, and eye-tracking to capture, on a physiological level, how individuals react to different aspects of the narrative presentation. Furthermore, these methods can be applied to not only individuals but also groups to determine how an individual’s reaction may be impacted in a group setting, simulating the true experience of a juror during trial. This brings a new level of psychophysical research to testing trial narratives and provides valuable insight into how members of the jury may react to various aspects of the proposed trial narrative, thus allowing the client and counsel to adjust their case strategy.
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Design Change Analysis to Reduce Possible Infringement

It is well understood that the cost of design patent litigation is increasing dramatically in light of recent rulings at the SCOTUS and FC levels. Therefore, we are experiencing an increasing desire on the part of clients and their respective litigation firms to seek our advice and counsel during product development for the specific purpose of identifying product design solutions that may in fact infringe other protected products. To this end, we offer clients and their inside and outside counsel expert design impact analysis and design change documentation.
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