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 trials, proving facts costs money. Proof involves discovery and witnesses, and both are significant drivers of litigation costs. Document discovery has become notoriously expensive (although good and early discovery management can significantly mitigate document discovery costs). Depositions can also be expensive: They involve a lot of preparation and out-of-pocket costs, such as court reporters and travel-related expenses. Interpreted depositions in foreign countries can easily run into tens of thousands of dollars per witness.