John Jarosz, managing principal at Analysis Group, Inc., and director of the firm’s Washington, D.C. office, is an economist who specializes in applied microeconomics and industrial organization. He has provided litigation and strategy consultation across a wide spectrum of industries, and delivered expert testimony in hundreds of depositions, trials, and hearings.
Also a frequent author and lecturer on the economics of intellectual property (IP) protection, Jarosz is the editor of Eckstrom’s Licensing in Foreign and Domestic Operations: The Forms and Substance of Licensing. His articles and papers have been published in the Stanford Technology Law Review, Federal Circuit Bar Journal, les Nouvelles: Journal of The Licensing Executives Society, The Journal of Business Valuation and the Journal of the Patent and Trademark Office Society. This year, Jarosz was named one of the leading IP expert witnesses in the world by IAM Magazine.
I was lucky enough to sit down with Jarosz to discuss the focus of his litigation work. “It has been on issues surrounding damages, commercial success, best efforts, license terms, and irreparable harm. And most of that work has been in IP matters, particularly regarding patents,” he explained.
From his perspective, the economic consulting business has experienced some major changes over the past 30 years. According to Jarosz, one big change has been in the size of the industry. There are now thousands of people providing economic consulting services — many of those are within large firms or are full-time academics who are allowed to do consulting on the side. A few years ago, a lot of consulting firms decided they were large enough to go public — and some remain public today. In addition, many like Jarosz have begun to work closely with in-house personnel and their outside lawyers in investigating the merits of a filed or prospective litigation.
“Because we participate in a bigger and more competitive industry than ever before, pressures to be both efficient and effective are constant. Though some in our business focus on one of those somewhat at the expense of the other, those dual pressures bring out the best in most of us,” he said.
When asked if his work could lead to a “battle of the experts.” Jarosz said although this is a valid concern, it is very difficult to test. Every trier of fact, be it a judge or jury, is different, and every case is different. “In some instances, I would imagine that the experts are viewed with skepticism and largely dismissed or cancelled out.” But he has been in enough hearings and trials to know that expert evidence and opinions are mostly heard, considered, and balanced very carefully. He explained, “Testimony that is simply not credible or nothing more than presentation of lawyer argument tends to be dismissed quite easily. Measured and objective testimony is not.”
Lately, there has been a perception that many big damages amounts have been awarded in IP cases, particularly in patent matters, according to Jarosz, which has led to more IP cases being filed and a proliferation of patent assertion entities. This has resulted in calls for patent reform.
I asked Jarosz to share some advice to in-house counsel in dealing with economic experts. He has found that it is helpful for in-house counsel to be involved in the hiring process as in-house counsel should know what they are buying. Moreover, “Fresh eyes may closely mimic those of the ultimate trier of fact,” he said.