Wednesday 17 February 2010

Why use experts? An expert explains

At last week's IP Finance-supported seminar on Funding and the Fortunes of Intellectual Property, hosted and organised by Hardwicke, I asked speaker Elizabeth Gutteridge (Partner, Forensic & Dispute Services, Deloitte LLP) if she could give any pointers to SMEs --which are notoriously reluctant to engage the services of financial consultancies if they can avoid having to do so -- which might either demystify some of the challenges of quantum assessments and/or give SMEs (and others) some degree of reassurance that engaging an expert doesn't have to be scary and/or expensive. Elizabeth has responded by producing some headings that correspond areas in which experts operate. This is what she says:
"1 Lost profits: If you're considering claiming for damages, be realistic as to how the infringement has affected your business. Dig out contemporaneous documents which show how your plans changed as a result of market developments and try to pinpoint the effect of the infringer's behaviour.

2 Royalties: A fall-back option will be assessing a reasonable royalty: consider how you would have responded if the infringer had approached you to take a licence instead of infringing. How have you treated other licensees? What benefits would you/they have expected to realise were a licence to have been granted? How does this compare with the licensing practice of other industry competitors?

3 Account of profits: How well do you know the infringer's business? Really? Can you tell how much they will have profited from infringing? Have they competed directly with you or would you actually have struggled to make the sales they have?"
If a business knows the answers to these questions already, it presumably won't need expert advice. However, in the vast majority of situations, the information or intuition of an SME needs to be supplemented if it is to be credible and reliable, and that's where experts come in. Thanks, Elizabeth, for your thoughts.

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