Every other year the American Intellectual Property Law Association conducts an economic survey, which provides the best average estimates of the costs of patent infringement litigation in federal court, among other things. Here we summarize some portions of the 2015 Report of the Economic Survey, the most recent available. For the first time, the AIPLA Report also includes the costs for Inter Partes Reviews, which are set forth below after the table.
The Report is based on responses from 1,366 individuals who had first-hand knowledge of the costs either as a seller of legal services or as a buyer. About 18% of the respondents were corporate IP department attorneys and IP department heads. The rest were private attorneys.
For litigation, the Report shows the costs for four different amounts in controversy/at risk. It also shows the costs for two stages, namely, through the end of discovery and through completion of the litigation (e.g., through trial and appeal if there was one). The costs are comprehensive and include those of outside and local counsel, associates, paralegal services, travel and living expenses, fees and costs for court reporters, copies, couriers, exhibit preparation, analytical testing, expert witnesses, translators, surveys, jury advisors, and similar expenses.
It is worth bearing in mind that, in general, the costs reported below for litigation and for Inter Partes Review will be somewhat lower for small IP firms. As the Report points out, the median hourly billing rates for IP attorneys at large firms (101 attorneys or more) and mid-sized firms (31 attorneys or more) were $437 and $400, respectively. The median rates for firms of smaller sizes ranged from $300 to $350.
Median Costs of Patent Litigation
|<$1M at Risk||$1M-$10M at Risk||$10M-$25M at Risk||>$25M at Risk|
|Through trial, appeal||$600K||$2M||$3.1M||$5M|
The median costs for Inter Partes Review were dramatically lower:
- Through filing petition $80K
- Through end of motion practice $200K
- Through PTAB hearing $275K
- Through appeal $350K
The AIPLA Report includes additional information about costs not presented here. For example, the Report includes the costs of:
- Patent litigation in major metropolitan areas, including the DC area
- Litigation to defend against patent suits brought by non-practicing entities (NPEs)
- ANDA/Hatch-Waxman patent litigation
- Patent suits before the International Trade Commission under Section 337
- Copyright infringement litigation
- Trade secret litigation
- Trademark infringement litigation
- Trademark opposition and cancellation proceedings
The Report further includes typical charges for various legal services for patents, trademarks and copyrights. For patents, it includes, among other things, the charges for opinions of validity/invalidity, opinions of infringement/noninfringement, patentability searches, drafting, filing and prosecution of applications of various types and technologies, appeals to the Board, and ex parte re-exams.