Jay Kesan and Gwendolyn Ball of the University of Illinois Law School recently published a very interesting article in which they detail their empirical analysis of patent litigations.* For the study they tracked 3,700 patent litigations beginning as early as 1995. Among other things, they found that 80% of patent litigations settle and 95% of patent litigations are resolved prior to a full trial on the merits. These should not be shocking results to patent litigators, but what may be more surprising is the results of their analysis of the cost of patent litigations.
* Thanks to the 271 Patent Blog for identifying the article.
While they could not directly review attorneys fees for the cases, they used the length of the case (which they admit may be a flawed indicator because of delays and stays for various reasons), the number of documents filed in the case (because each filing costs attorney time), and whether a case reached claim construction and summary judgment phases (which are attorney time intensive).
The study found that half of the patent litigations were resolved within ten months of filing. The also found that expenditures for patent litigations were relatively "modest", although they acknowledged that their cost determination was skewed downward by the large number of cases that settle or are otherwise resolved in the first year of the litigation. The study also showed that litigations that did not settle quickly and went through summary judgment or trial could become relatively expensive. Of course, expense is relative. If the damages potential is large enough, attorneys fees for counsel that get an award for you or prevent one against you will see well worth the return