Litigation and Contingency Fees
Patent litigation can be prohibitively expensive. A recent article appearing in a patent law journal found that for a case with a possible recovery of between one and ten million dollars, the cost of legal counsel was about one million dollars. More and more patent attorneys are turning to representing clients on a contingency basis. As yet, there are no state statutes, or federal statutes governing the contingency fee amounts that can be agreed to. Some of the factors an attorney may consider before deciding to take on a contingency fee case are (1) the facts of the case, including the strength of the patent and the patent prosecution history; (2) the ability of the Defendant to satisfy any judgment; and (3) the ability to retain an expert to testify as to the infringement. There is much more that goes into the analysis, but these are the basic foundations of any infringement case consideration. It is necessary that you discuss all facets of the potential litigation before determining your course of action.
The interpretation of the statutes applicable to patent litigation have changed substantially in the last few years. It is anticipated that the interpretations, that is “case law”, will undergo metamorphosis over the next few years. Before embarking on any legal course of action it is best to revisit the case law to understand how the new interpretations of the statutes and previous cases will be affected by the facts of your case and the interpretations recently rendered by the Courts.