(Mis)reliance on Social Science Evidence in Intellectual Property Litigation: A Case Study

Abstract:

Although courts increasingly rely on social science evidence in litigation, this practice has undergone surprisingly little analysis outside Charter litigation. In particular, although social science evidence—including surveys, economic studies, and estimates of market losses—is commonplace in intellectual property litigation, it has attracted only limited substantive or critical analysis. Because this evidence is fundamental not only to questions of liability, particularly in trade-mark litigation, but also to damages across all forms of intellectual property, it is time to fill this gap. This article begins the discussion by pointing to the urgent need for judges and lawyers to be discerning in their assessment of the reliability of this evidence. It then illustrates the difficulties of relying on social science evidence in intellectual property litigation by examining the admissibility of a study conducted by the Patented Medicine Prices Review Board (PMPRB) that has potential to be used in a patent case. On the basis of this examination, the authors propose guidelines to assist courts in making determinations concerning the admissibility of social science studies.