For more on Patent Litigation Specifically, see Patent Litigation. 

 

Frustrating, time consuming, inefficient and unpredictable are just a few of the problems often associated, justifiably, with litigation.  And the biggest problem is usually cost.  IP litigation generally, and patent litigation in particular, magnifies all of these problems. 

 

For cost control and other reasons, choosing your litigation team may be your most important decision.  You should refer to a firm’s web site to begin your assessment of a  firm’s depth, experience and approach to litigation.  See, for example, Litigation & Dispute Resolution.  But ultimately you will need to interview those who will represent you and satisfy yourself that they have the competence and resources that the litigation will demand as well as the commitment to cost control that you need.

 

Most IP litigation takes place in the federal courts because federal statutes govern nearly all areas of IP law.  Most cases require two or more years before a final decision is reached, and this may be delayed further with appeals.  As expected, a large majority of IP cases are heard in U.S. district courts in metropolitan areas, or areas with a lot of corporate activity.  But certain district courts have attracted attention with procedures for disposing of litigation more quickly or for their experience with certain kinds of cases

 

This may be of particular importance in patent litigation which generally tends to be more complicated, more time consuming and more expensive than other litigation, even other IP litigation.  Thus U.S. district courts in East Texas, Eastern Virginia and Wisconsin are known, for example, for their rocket dockets, and for their attractiveness to patent litigants, while the U.S. District Court in Delaware is known for its experience and efficient handling of patent cases.

 

State courts often hear trade secret cases but court procedures and other characteristics differ even more widely among state courts than among federal courts.

 

Much of the expense and inconvenience in U.S. litigation relates to “discovery.”  In the discovery process each party may request of other parties, or even related non-parties, information related to the litigation.  These requests and the responses to them may be in writing, such as a request for documents or admissions, or may take place in oral proceedings called depositions.  Discovery, as such, is pretty much unique to U.S. litigation.  Discovery is broad.  A party can request  any information as long as  it may  lead to evidence that can be used at trial.

 

In recent years, e-discovery, the discovery of electronically stored information “ESI”  (electronic files, e-mail, archived network storage, etc.), has increased the expense and inconvenience of discovery enormously.  The volume and the technical nature of sorting, de-duplicating, and imaging ESI leads to the increased cost.  When litigation is on the horizon, all files (including electronic files) possibly related to the subject matter to be litigated, must be preserved to avoid accusations that relevant evidence has been deliberately destroyed.

 

Apart from discovery, the other major phases of litigation generally are:

           

Pleadings - Filing of claims and defenses (Complaint, Counter-claims, Answers, and Replies)

            Motions - May be filed anytime after the filing of the complaint, and requests the court to make a ruling ( may be procedural or substantive)

            Trial (which may be jury or non-jury)

            Appeal

 

When litigation is contemplated, the implications and contingencies associated with all of these phases, and the possible related cost of those contingencies, should be discussed with counsel.  It perhaps goes without saying, that seldom, if ever, can a prospective litigant ignore the cost of litigation.  To give a very high level perspective of this cost, the median litigation costs* for various kinds of IP litigation are shown in the following table

 

 

*Based on 2009 Economic Survey of the American Intellectual Property Association (data from 2008)

 

Litigation necessarily involves opposing parties with conflicting objectives.  Because of this, one party’s litigation cost and strategy is often greatly influenced, if not rendered meaningless, by strategic moves of opposing parties, in turn challenging all efforts to impose budgetary constraints as well as all efforts to plan and implement a rational litigation strategy.  In this respect, litigation bears an unfortunate resemblance to war and to competitive athletic games.  Fortunately or unfortunately, the results may be equally exhilarating or depressing, and the emotional anxiety produced by those possibilities has been known to unduly impact the rationality with which litigation is managed. (See article, "Is Litigation Manageable")

 

This leads to two other considerations:

 

First, frustrating though it may be, one should not approach litigation without a litigation plan to manage  both the cost and the litigation itself.

Second, one should consider alternatives to litigation.  Preferably this entails meaningful negotiation involving individuals at higher levels of responsibility than those who have been unsuccessful in reaching a settlement to date.  If this fails, you may resort to other forms of Alternative Dispute Resolution (ADR), including mediation and arbitration.

 

Most litigation, particularly patent litigation, never reaches the trial stage but is settled, often at critical points in the litigation, such as at its inception, or just after a claim interpretation ruling (for patent litigation) or just before trial.  Once litigation has started, it can only be settled with an agreement between the parties, and that settlement agreement is subject to court approval.  If one party wants to terminate the litigation unilaterally, it cannot do so after an Answer to the Complaint has been filed unless it abandons its case, concedes to the other’s party’s position and pays court costs.