Valuation of Intellectual Property Rights – Damages in Infringement Cases – Interview with Brian Buss – Happy Holidays! – IP Fridays – Episode 170

Brian is: Managing Director, GlassRatner

LinkedIn bio:

https://www.linkedin.com/in/brianbuss

I am Rolf Claessen and my co-host Ken Suzan and I are welcoming you to episode 170 of our podcast IP Fridays! We also want to wish you a happy holiday season and a successful year 2026!

Today’s interview guest is Brian Buss. He is the managing director of GlassRatner and my co-host Ken Suzan talks with him about the valuation of intellectual property rights and damages in infringement cases.

But before we jump into the interview, I have news for you!

A US start-up called Operation Bluebird is trying to take over the “Twitter” trademark. It has asked the USPTO to cancel Twitter word marks, arguing that Elon Musk’s company X no longer uses them after the rebrand. Led by a former Twitter trademark lawyer, Operation Bluebird also filed its own “Twitter” trademark application. Commentators note that X could face challenges defending the legacy marks if they are truly no longer in use.

In parallel, the US debate on patent quality and review procedures is intensifying. The USPTO proposed controversial rule changes that would restrict Inter Partes Review (IPR). The proposal triggered substantial backlash, with more than 11,000 public comments submitted—over 4,000 of them via the civil liberties group EFF.

In the EU, a major trademark reform will take effect on 1 January 2026. It aims to simplify procedures, recognize new types of marks (including hologram, multimedia, and motion marks), and make fees more SME-friendly (e.g., lower base fees for the first class and discounts for timely renewals). Opposition procedures will be further harmonized across the EU, including a mandatory “cooling-off” period, so mid-sized brand owners should adjust filing and monitoring strategies accordingly.

The Unified Patent Court (UPC) continues to see strong uptake, especially in Germany. In the first 18 months since its launch on 1 June 2023, well over 900 cases were filed, with German local divisions (Munich, Düsseldorf, Mannheim, Hamburg) leading in patent actions. While many early cases were filed in German, English now dominates as the main language of proceedings. The court has largely met its timelines, with oral hearings typically held within 12 months of filing.

China has reached a milestone in its patent system: for the first time, a country has surpassed 5 million active invention patents. CNIPA emphasizes a strategic shift from “quantity to quality,” citing growth in “high-value” patents and higher commercialization rates for university inventions. China has also led global PCT filings for six consecutive years—signals of rapid technological progress relevant to IP planning for German SMEs.

On 4 December 2025, the USPTO issued new guidance on “Subject Matter Eligibility Declarations.” These declarations allow applicants to submit additional evidence to support patent eligibility for emerging technologies such as AI systems and medical diagnostics, aiming to reduce the risk that breakthrough inventions are excluded from protection under strict eligibility case law.

In December, the European Patent Office (EPO) introduced new patent-quality measures. Third parties can now submit observations on published applications or granted patents via a simplified online form. These Third-Party Observations—supported by evidence and even filed anonymously—go directly to examination teams to flag potential obstacles early.

The Interview with Brian Buss:

Ken Suzan interviews Brian Buss, a valuation and damages expert who describes his work as “financial detective” work: identifying what intellectual property and other intangible assets are worth and how they translate into measurable economic benefits such as sales, profit, earnings, or cash flow.

Buss emphasizes that “IP” should be understood broadly, not only as formal rights (patents, trademarks, copyrights), but also as brands, technology portfolios, internet and social media assets, know-how, and other business intangibles that help generate economic value.

A central point is that IP is often a company’s most valuable resource but is rarely measured well. Buss cites a “value gap” he observed in middle-market public companies: market capitalization often exceeds the asset values shown on balance sheets, and much of the gap is explained by intangible assets and IP. He argues that valuation helps companies understand ROI on IP spend (prosecution, protection, enforcement) and supports better strategic decision-making.

He outlines common scenarios that trigger IP valuation: internal management needs (understanding performance drivers), disputes about resource allocation (e.g., technology vs. marketing), external events (M&A, licensing, partnerships, franchising, divestitures), and pricing strategy (how exclusivity supported by IP should affect product/service pricing).

On “how” valuation is performed, Buss summarizes the three standard approaches—cost (replacement/replication cost), market (comparable transactions), and income (present value of future benefits). He adds that strong IP valuation requires integrating three dimensions of analysis: financial factors (performance data and projections), behavioral factors (customer demand drivers, perceptions, brand recall, feature importance), and legal factors (registration/enforcement history and competitive IP landscape).

For practical readiness, he advises companies to improve data discipline: maintain solid books and records; develop credible budgets, forecasts, and business plans; document marketing activities; and actively collect/monitor website and social analytics (e.g., traffic sources, engagement). He stresses that these datasets inform valuation even for technology assets like patents, because they reveal whether protected features are actually marketed and valued by customers.

A concrete example is domain names, which he frames as “virtual real estate.” In due diligence for a domain sale, he would focus on analytics showing whether the domain itself drives traffic (direct type-ins, branded search terms, bookmarks) versus traffic driven by other marketing efforts. The key question is whether the address is known and used as a pathway to the business.

In closing, Buss argues that while gathering the necessary information requires effort, the investment typically pays off through greater awareness of the most valuable assets, better strategic decisions, and stronger support for growth opportunities. He presents IP valuation as a virtuous cycle of information, insight, and improved decision-making—summed up in his recurring theme: knowledge of IP value is “power” to increase business profitability and enterprise value.

Here is the full transcript:

Ken Suzan: Our guest today on the IP Fridays podcast is Brian Buss. Brian is a managing director with Glass-Rattner Advisory and Capital Group. Brian provides financial analysis, corporate finance, and expert testimony around the world.

Ken Suzan: Mr. Buss provides strategic advice for owners of intellectual property portfolios, transactional services such as acquisition due diligence and purchase price allocation, and valuation services for trademarks, patents, copyrights, brand assets, trade secrets, technology assets, and intangibles.

Ken Suzan: During his career, Mr. Buss has provided valuation opinions and financial analysis in business disputes and in transactions, and he has been retained as a testifying expert and consulting expert in federal court, state courts, and arbitration proceedings.

Ken Suzan: As an expert, Mr. Buss has provided over 100 expert opinions, served as an expert witness at trial and deposition, and has been published in numerous journals and publications. He is also a participant in the International Task Force on Intellectual Property Reporting for Brands.

Ken Suzan: Brian holds an MBA from San Diego State University and a bachelor’s degree from Claremont McKenna College. Welcome, Brian, to the IP Fridays podcast.

Brian Buss: Thank you, Ken, for having me. I appreciate the opportunity.

Ken Suzan: Excellent, Brian. Can you tell our listeners a little bit about your professional background and what you do in the world of IP?

Brian Buss: Sure. I’m a valuation professional and an economic damages expert. Most of my work involves valuing intellectual property and intangible assets and, in litigation contexts, assessing economic damages—often related to IP disputes. My role is frequently to translate legal or technical issues into financial outcomes.

Ken Suzan: When people hear “IP,” they often think patents, trademarks, and copyrights. In your work, how broadly do you define intellectual property and intangible assets?

Brian Buss: I define it very broadly. Of course, there are the formal rights—patents, trademarks, copyrights—but there are many other intangible assets that drive value: brand reputation, customer relationships, proprietary know-how, trade secrets, data, software, domain names, social media assets, and the systems and processes a business builds over time. All of those can create economic value, even if they’re not always captured well on a balance sheet.

Ken Suzan: Why is IP valuation important for companies—especially mid-sized businesses that may not have a large in-house legal or finance team?

Brian Buss: Because IP and intangible assets can be a large portion—sometimes the largest portion—of what makes a business valuable, yet they’re often not measured or managed with the same discipline as tangible assets. Valuation can help companies understand what is actually driving revenue, profit, and enterprise value. It can also help them justify investment in IP creation, protection, and enforcement, and it can support strategic decisions like licensing, partnerships, acquisitions, or pricing.

Ken Suzan: You’ve talked elsewhere about a “value gap” between what’s on the balance sheet and what the market thinks a company is worth. Can you explain that concept?

Brian Buss: Sure. If you look at many companies—particularly in the middle market—you’ll often see that market capitalization exceeds the asset values recorded on the balance sheet. A significant portion of that difference is attributable to intangible assets and IP that accounting rules don’t fully recognize unless there’s an acquisition. That “gap” is essentially the market saying, “There is value here beyond tangible assets,” and much of it comes from intangibles.

Ken Suzan: What are the most common situations where a company needs an IP valuation?

Brian Buss: There are a few big categories. One is transactions—M&A, due diligence, purchase price allocation, and financing. Another is licensing and partnerships—setting royalty rates, structuring deals, or evaluating whether a proposed license makes economic sense. A third is internal management: understanding ROI on R&D, marketing, or IP spend, or resolving internal debates about what is really driving business performance. And of course, litigation—damages, reasonable royalties, lost profits, and other economic remedies tied to IP.

Ken Suzan: In practical terms, how do you value IP? What methods do you use?

Brian Buss: The valuation profession generally relies on three approaches: the cost approach, the market approach, and the income approach. The cost approach looks at what it would cost to recreate or replace the asset. The market approach looks at comparable transactions—if you can find good comparables. The income approach is often the most relevant for IP: it looks at the present value of future economic benefits attributable to the IP, based on cash flows, risk, and time.

Ken Suzan: In addition to the financial methods, what other factors matter? For example, legal strength or market perception?

Brian Buss: Exactly. A strong valuation integrates financial, behavioral, and legal analysis. Financial is obvious—historic results, projections, margins, pricing. Behavioral is about demand drivers—what customers value, how they perceive the brand, how features influence purchasing decisions, and what drives loyalty or switching. Legal involves the nature of the IP rights, scope, enforceability, registration and maintenance history, and the competitive landscape. IP exists at the intersection of all three.

Ken Suzan: What kind of information should a company have ready if they want to do an IP valuation?

Brian Buss: Good books and records are essential—reliable financial statements, product-level revenue and cost data if possible, and credible budgets and forecasts. They should also document marketing activities, product positioning, and the role of IP in commercialization. For digital and brand assets, analytics matter—website traffic sources, conversion data, engagement metrics, and social media statistics. The more you can connect the IP or intangible asset to measurable economic outcomes, the stronger the valuation.

Ken Suzan: That’s interesting—people might not think that marketing analytics matter for patents. Can you explain how those link up?

Brian Buss: Sure. A patent might cover a particular feature or technology, but the key economic question is: does that feature drive demand? If customers value it and it supports pricing power, adoption, or market share, that’s important. Marketing materials, customer communications, sales training, and analytics can help show what the company emphasizes and what resonates with customers. It helps tie the legal right to real-world economic value.

Ken Suzan: You mentioned domain names earlier. Many people underestimate them. How do you think about domain names as an asset?

Brian Buss: I often describe domain names as virtual real estate. The question is whether the domain is a meaningful pathway to the business. In a valuation context, you’d look at the domain’s role in generating traffic—direct navigation, branded search, bookmarks, and repeat visits. You’d also look at how much traffic is attributable to the domain itself versus paid marketing. If the domain is known and drives organic traffic and credibility, it can be quite valuable.

Ken Suzan: So, if you’re doing due diligence on a domain sale, what would you look for?

Brian Buss: I’d look closely at analytics: traffic volume over time, sources of traffic, geographic distribution, conversion rates, and the relationship between marketing spend and traffic. If traffic is mostly paid and disappears when marketing stops, that’s different than sustained direct navigation. I’d also look at brand alignment, risk factors, and whether there are disputes or competing rights.

Ken Suzan: For a mid-sized company listening to this, what are the biggest “misses” you see—things companies do that reduce the value they can capture from IP?

Brian Buss: A big one is not collecting and organizing information that demonstrates value. Another is not aligning IP strategy with business strategy—filing patents or trademarks without a clear plan for how they support products, markets, and revenue. Some companies also underinvest in documenting commercialization and customer impact, which becomes important in transactions and disputes. And sometimes they simply don’t revisit their portfolios to understand what is still relevant and what is not.

Ken Suzan: How should companies think about ROI on IP spend—both the costs of prosecution and the costs of enforcement?

Brian Buss: They should start by identifying the economic role of the IP: is it supporting pricing power, is it protecting market share, is it enabling licensing revenue, is it reducing competitive entry? Then they can compare the costs—filing, maintenance, monitoring, enforcement—against the value it protects or creates. Valuation can provide a framework for that, and it can also help prioritize where to spend resources.

Ken Suzan: When valuation is used in litigation, what are the typical types of damages analysis you’re asked to perform?

Brian Buss: Commonly, reasonable royalty analysis, lost profits, unjust enrichment, and sometimes disgorgement depending on the jurisdiction and the claims. The specifics depend on the legal framework, but the core is the same: quantify the economic harm and connect it causally to the alleged infringement or misappropriation, using financial data, market evidence, and assumptions that can be tested.

Ken Suzan: Are there misconceptions about valuation that you’d like to correct for our audience?

Brian Buss: One misconception is that valuation is purely subjective or that it’s just an “opinion.” A good valuation is grounded in data, established methodologies, and transparent assumptions. Another is that intangibles can’t be measured. They can be measured—often through the economic benefits they create and through evidence of customer behavior and market dynamics. It takes work, but it’s doable.

Ken Suzan: If a company wants to prepare for a future transaction—say a sale or a major partnership—what are some practical steps they can take now to make their IP story stronger?

Brian Buss: Maintain clean records, develop credible forecasts, and document the link between IP and business results. Make sure registrations and maintenance are up to date. Track how IP supports products and competitive differentiation. Collect evidence of brand strength and customer loyalty. And if possible, structure internal reporting so you can see performance by product line or offering. That helps in due diligence and helps buyers or partners understand what they’re paying for.

Ken Suzan: Any final thoughts or advice for owners of intellectual property portfolios, transactional professionals, or executives listening to this?

Brian Buss: I’d emphasize that the investment in gathering the information needed for evaluation typically pays off. It creates awareness of the most valuable assets, supports better strategic decisions, and makes it easier to pursue growth opportunities. IP valuation is a virtuous cycle of information gathering, analysis, deeper understanding, and then decision-making. Knowledge is power, and knowledge of the value of your IP is the power to increase the profitability and value of your business. IP valuation is a key element of the management toolkit.

Ken Suzan: Brian, well said, and thank you so much for taking time today to be on the IP Fridays podcast.

Brian Buss: Thank you, Ken. I really appreciate the opportunity.