It is no secret that patent cases are some of the most expensive cases to get through trial. There has been growing concern in the commentary and in Congress that the costs of patent litigation introduce an unacceptable risk to patent litigants of taking their cases to trial. It may be a surprise that the costs and risks of patent litigation are made worse, not better, by recent scrutiny of large patent verdicts and by the likelihood of appellate intervention in trial court decisions. Complicated damages analysis, the role and review of expert opinions, and the likelihood of de novo review all drive up the costs of patent litigation.
Factually Intensive Issues
In some cases, more complex damages analysis leads to better and more accurate damages calculations. In others, I am quite certain it does not. But there is no question that these more complex and more factually intensive damages analyses are more expensive and drive up litigation cost. At present, there is no well-accepted doctrine that the complexity of the damages analysis might be tailored to the value of the case, allowing simpler damage analyses in lower-value cases.
It is also worth noting that the cost of technical experts in patent cases seems, at least to me, to be going up as well. Damages experts in difficult technology fields are currently asking double to triple the hourly rates that prevailed not very long ago.