Part Four: Controlling the Costs of Patent Litigation.
This is the last of a four-part series about controlling patent litigation costs. In Part One I discussed how the choice of counsel can impact costs. In Part Two I discussed how strategic decisions early in litigation can increase the likelihood of an early settlement. In Part Three I discussed some potentially cost-saving alternatives to U.S. patent litigation. In this part I discuss how the choice of venue can affect litigation costs and outcomes.
We have seen previously that the cost per party of U.S. patent litigation often reaches well into the millions of dollars. Here I discuss how the plaintiff’s choice of venue can impact these costs, as well as affecting the likely outcome of the litigation when the case is contested through trial.
Court Speed and Time to Trial
While time to trial is not a direct measure of litigation costs, it stands to reason that in general, a case that lasts significantly longer will be more expensive. At a minimum, time to trial indicates how long the parties can expect to have litigation expenses on their books, and how much time will pass before receiving any remedy from the court. Remarkably, as indicated in the table below, the median time to trial varies among federal districts from under one year to almost four years, with a median of about 2.5 years.
| District | Decisions with time to trial data | Time to trial (in years) |
| Virginia Eastern | 22 | 0.97 |
| Wisconsin Western | 10 | 1.07 |
| Florida Middle | 15 | 1.74 |
| Delaware | 113 | 1.94 |
| Texas Southern | 11 | 2.00 |
| Texas Eastern | 85 | 2.19 |
| California Central | 29 | 2.34 |
| Texas Northern | 18 | 2.42 |
| Florida Southern | 15 | 2.50 |
| Minnesota | 12 | 2.66 |
| New Jersey | 27 | 2.70 |
| California Northern | 39 | 2.72 |
| New York Southern | 36 | 2.95 |
| Massachusetts | 25 | 3.63 |
| Illinois Northern | 35 | 3.67 |
Median time to trial by district 1995-2012 (source: PriceWaterhouseCoopers)
Accordingly, the speed of the court is a factor that the plaintiff may want to consider when bringing an action.
Success Rate
While again not a factor that directly affects litigation costs, the fraction of cases in which the plaintiff obtains a judgment of infringement and validity impacts the cost-benefit analysis that a patent owner should perform before bringing an action for patent infringement. The plaintiff’s overall success rate, which means success at summary judgment or trial, varies significantly by district. The table below adds the success rate to the time to trial data of the previous table:
| District | Time to trial (in years) | Overall success rate |
| Virginia Eastern | 0.97 | 34.8% |
| Wisconsin Western | 1.07 | 32.4% |
| Florida Middle | 1.74 | 51.4% |
| Delaware | 1.94 | 42.2% |
| Texas Southern | 2.00 | 19.6% |
| Texas Eastern | 2.19 | 57.5% |
| California Central | 2.34 | 30.4% |
| Texas Northern | 2.42 | 40.6% |
| Florida Southern | 2.50 | 26.3% |
| Minnesota | 2.66 | 29.8% |
| New Jersey | 2.70 | 34.9% |
| California Northern | 2.72 | 23.9% |
| New York Southern | 2.95 | 30.0% |
| Massachusetts | 3.63 | 32.4% |
| Illinois Northern | 3.67 | 24.8% |
Median time to trial and plaintiff’s overall success rate 1995-2012
(source: PriceWaterhouseCoopers)
The success rate data above explains, for example, the popularity of filing patent infringement actions in the Eastern District of Texas, which is faster than average and very favorable to plaintiffs. It also reveals some less commonly known information, such as a much lower than average success rate in the Northern District of California. More generally, the data indicates the need to consider the question of venue carefully before bringing an action for patent infringement. This analysis should in many cases extend beyond the conventional question of personal jurisdiction over the defendant, to the characteristics of the court itself.
About Us
Kolisch Hartwell has successfully represented clients in hundreds of federal district court cases around the country, including at least 35 appearances before the U.S. Circuit Courts of Appeal and three appearances before the U.S. Supreme Court. We also represent companies of all sizes in patent and trademark prosecution matters, general intellectual property counseling, and all other IP-related matters. Learn more about our services or contact us to make a specific inquiry.