Litigation costs grow each year and the cost for intellectual property (IP) litigation for patents, trademarks and trade secrets is growing faster. However, there are strategies inside counsel can use to help control those costs and fees. Among the IP litigation cases, patent cases are usually the costliest as they can involve multiple patents, with numerous asserted claims from those patents. Discovery and expert expenses are also likely to be high and need to be considered as part of the strategy.

Explore Alternates to Litigation Early in the Process

First and foremost, in-house counsel should consider whether there are avenues to avoid IP litigation. Reach out to opposing counsel early in a case to see if there can be an amicable resolution outside of court. Explore alternative resolutions to disputes, such as ADR, licenses, joint ventures, etc. When appropriate, discuss settlement at an early stage of the dispute and re-consider throughout the proceeding if it does not occur at an early stage in the dispute. There have been many instances where cases settle even before suit was filed by reaching out to the opposing side/counsel. Some counsel believe that discussing settlement can be a sign of weakness in their case; however, that is not always the case, as it’s simply smart business sense to avoid litigation, if possible. In addition, try to maintain a cordial relationship with opposing counsel. Contentious litigation is more difficult to resolve and usually costs more.

Seek IP Counsel Prior to Product Development