Patent litigation is famously expensive. The issues are complex, high-priced experts are often a must, and the process can take years. And just when you think the multi-million dollar ride will stop, the Federal Circuit Court of Appeals can change the claim construction and remand the case for another trial. One of the promises of the America Invents Act was to change all that by offering streamlined litigation on the validity of the patent in the patent office as an alternative to district court litigation. Now, about 18 months into the experiment, it is fair to ask whether patent litigation is becoming more cost effective. The answer inside counsel may not want to hear is sometimes yes, but on average, probably not much.
The primary path to an efficient resolution for an accused infringer is clear: File for inter partes review (IPR), stay the litigation, win the IPR canceling all claims, and it’s over. This path can generally be accomplished for low to mid six figures, as opposed to low to mid seven figures or more in court. But it is easier said than done.