I have written a lot about the high costs of IP litigation and how I see these high costs as depriving the majority of IP owners their First Amendment right to seek redress for patent infringement.  It seems these costs are set to get higher before they get any lower.  So, what are some tools you can use to make IP litigation more economical?  In this article, I outline five steps to help control IP litigations costs:

1. Effective Communication about a case budget

Open Dialogue with Your Lawyer about a case budget at the start of the case and throughout:

• Periodic Reviews: Initiate regular case reviews with your lawyer to keep track of progress and costs with regard to the budget. This could be weekly, monthly, or quarterly depending on your preference.  Weekly is likely too often but monthly align with a normal billing cycle at most law firms.
• Meeting Agenda: Start each review with a clear agenda prepared by your lawyer and directly related to the budget. Use these meetings to focus on the key issues and financial aspects of your case.
• Consider Third Party Financing:  Bringing outside financing in can help take a case deeper but your goals for the case should be balanced with the added burdens of third-party financing.

Effective communication helps you monitor the case closely and avoid unexpected expenses and will greatly increase adherence to the case budget.

2. Choosing the Right Legal Representation for the case budget

Find a Specialist:

• Experience Over Reputation: Opt for a lawyer with extensive experience in patent litigation specifically, rather than just a well-known firm/lawyer name.  Experience for the type of litigation you expect to file is most important, from mass filings, to ANDA, to the ‘bet the farm cases.'  Each type of case requires a different type of lawyer with a different skill set.
• Presentation Skills: Ensure your lawyer can effectively communicate complex legal concepts to a jury or judge and this begins with the lawyer explaining those concepts to you.  Do not go with a lawyer who has not explained several ways they see the case resolving.  It is all about expectations.

By choosing a specialist, you can benefit from both efficiency and expertise, potentially saving on costs related to misunderstandings or prolonged cases.

3. Explore Alternative Fee Arrangements for the case budget

Consider Different Billing Options:

• Fixed Fee: Set a predetermined fee for certain segments of the case, avoiding surprises.
• Contingency Fee: Pay a percentage of the recovery instead of hourly rates, aligning your lawyer's incentives with yours.
• Hybrid Model: Combine reduced hourly rates with a contingency percentage to balance risks and rewards.

These arrangements can provide more predictable costs and incentivize efficient legal work.

4. Streamline Your Legal Team and incorporate technology in line with the case budget

Limit the Number of Attorneys:

• Small, Focused Teams: Use the minimum necessary number of lawyers to handle your case. Often, three or even one lawyer can suffice.
• Direct Involvement: Ensure your chosen lead lawyer is actively involved in the case.
• Use Modern Tools of Document Management Software: Encourage your lawyer to use tools that allow for efficient document searches and management.
• And automation: Exploit technology to reduce manual hours and increase efficiency.

Technological tools can cut down on the time and costs associated with document review and other labor-intensive tasks.

A smaller team utilizing technology can reduce redundancy, miscommunication, and costs, thereby maintaining budget.

5. Focus on Key Issues to maintain case budget

Prioritize Legal Arguments and Motion Practice:

• Select Core Issues: Decide on the most critical issues to pursue, potentially dropping weaker arguments to streamline the case.  Only file needed motions.  While a large corporate defendant has unlimited pockets to increase costs, most motions do not need to be filed.  Keep motion practice to what is needed.
• Risk Management: Be prepared to make hard choices early, even if it involves some risk.

Focusing on key issues can prevent the case from expanding unnecessarily, saving both time and money.

Conclusion

By following these steps, you can significantly reduce the cost of IP litigation. Each strategy requires careful consideration and adaptation to your specific circumstances. Remember, the key is to balance cost-saving measures with the need to effectively protect your intellectual property rights.

William P. Ramey III is the founding partner of Ramey, LLP, a firm with an international practice with its primary office located in Houston, Texas. Bill's practice includes representing both plaintiffs and defendants with a variety of fee arrangements from contingent to hourly.  Bill's ideal client is passionate about their IP and willing to do what it takes to enforce that IP.  His clients range from solo inventors to multi-national corporations.  Bill's Firm has a passion for helping clients monetize their intellectual property and is able to efficiently litigate cases that may not have potential damages for most firms to take the case. Bill believes all meritorious should be able to be pursued and all intellectual property owners deserve representation and access to the courts.  

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