I am often asked how much it costs to take a patent case through trial. And like most questions asked of a lawyer, the answer is usually, “It depends.” A number of factors can influence the cost of a patent case, many of which are out of the control of the litigating parties. A 2013 study conducted by the American Intellectual Property Law Association found that the median cost of a patent case is between $700,000 and $5.5 million, depending on how much is at stake in the case.
To better appreciate the costs involved, it helps to understand what it takes to litigate a patent case. The factors discussed below address, at a high level, the phases of a patent case in an attempt to help frame the costs, and they provide insight into when the parties should reevaluate both the legal and business strategies of a case in order to resolve the matter short of going to trial.
Dispositive motion practice
Near the close of discovery in a patent case, or shortly thereafter, the parties typically file summary judgment motions on the issues and defenses they feel are dispositive in the case. Each court and/or judge has its own set of rules, process, and procedures governing dispositive motion practice. The motions typically present facts and expert’s arguments on case dispositive issues such as infringement, invalidity, laches and others. The number and complexity of the case dispositive issues, coupled with the process and procedures dictated by the court and/or judge, can affect the cost of dispositive motions. Rulings and/or pending motions from dispositive motion practice should be used as backdrop to reevaluate the business and legal outcomes and ramifications of the case, and to explore settlement if necessary or appropriate.