At a recent Texas conference, Chief Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit addressed the challenges posed by the high costs of U.S. patent litigation. Rader proposed several approaches to reducing these costs, including a model e-discovery order developed by the Federal Circuit Advisory Council’s E-Discovery Committee. The Model Order lays a solid foundation to help manage patent litigation expenses, but additional elements could build on the Model Order to reduce patent litigation costs.
In his speech, Rader made three observations. First: “The greatest weakness of the U.S. court system is its expense.” Second: “The driving factor for that expense is discovery excesses.” Third: “Patent cases, in particular, produce disproportionally high discovery expenses.” He cited a Federal Judicial Center report that intellectual property litigation costs are almost 62% higher than other matters. The average cost of taking a patent case to trial can hit $5 million per patent,electronic data discovery expenses can be 90% of the total cost, he said.
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