The Use of Conjoint Analysis in High-Stakes Litigation

A historical review up to Navarro et. al. v. Procter and Gamble, which withstood a rigorous Daubert challenge

The use of conjoint analysis has become increasingly common in litigation including in, among others, patent infringement cases (for example, how much does the patented feature increase the value of the overall product), deceptive advertising cases (for example., how much demand was driven by the representation of a product as “organic”), copyright infringement cases (for example, how much profit was driven by the use of a copyrighted image on product packaging), product liability cases (for example, how much of a car’s overall sales are driven by the inclusion of antilock brakes), and data privacy cases (for example, how much do users value their personal information). As the use of conjoint analysis has increased, so have the incidences of courts rejecting these types of analyses. This article: (1) reviews the mechanics of conjoint analysis; (2) briefly summarizes recent matters where the approach was used and accepted (or rejected) by the courts; (3) draws some inferences based on these cases; and (4) concludes with a detailed presentation of a recent case where conjoint analysis was successfully used resulting in a detailed court opinion that is summarized here. The objective of this article is to provide the reader with a comprehensive overview of the current state of the art in the use of conjoint analysis in litigation.

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This article was originally published in the Journal of the Patent & Trademark Office Society 102(3), pp. 502–526 (August 2022). The article was published while Paul Wazzan was employed at a prior firm.