The first three articles in this series discussed strategies for choosing the individuals, firms, and vendors that will work on an IP litigation matter, strategies for laying the groundwork in early stages of the litigation so that costs are controlled in later stages, and strategies for reducing costs through case scheduling and during discovery. This article explores ways to limit costs through strategic motions that may limit the overall scope of the litigation.
Weigh the costs and potential benefits of filing dispositive motions
Consider motions that may limit the scope of trial
Other ways to conserve overall costs by engaging the adversary include pursuing motions, such as a motion for bifurcation or a motion in limine that may remove issues from consideration at trial. Bifurcation may be appropriate if a determination on one issue might eliminate the need to try another complicated, expensive or time-consuming issue. For example, litigants commonly seek to separate the issue of liability from damages. In patent cases, issues of willful infringement, equitable defenses, and antitrust claims are also candidates for bifurcation. Bifurcating willfulness simplifies the case by postponing and perhaps avoiding discovery into matters normally protected by attorney-client privilege (e.g., pre-litigation advice about the validity of the asserted patent). Bifurcating damages may avoid costly discovery and delay any trial relating to the relevant market, market share, prior licenses, defendant’s finances, costs of production, overhead, and other expenses.