ABSTRACT
Once issued by the United States Patent and Trademark Office, a patent is afforded a presumption of validity, and patents that successfully pass judicial review in litigation obtain an even stronger barrier to potential competitors. However, according to Judge T. S. Ellis III [2], escalating patent litigation costs have distorted these patent economics:
litigation costs have increased even more. According to a 2013 economic survey commissioned by the American Intellectual Property Law Association (AIPLA), the median litigation cost for patent infringement is nearly $6 million (per side) for lawsuits involving more than $25 million in risk [4]. For cases between $1 million and $25 million, total litigation costs per side range from $2 million to $3.325 million. Much more concerning, however, is that suits with $1 million or less in risk have an average cost of $700,000 and, in many instances, the litigation cost exceeds the amount in issue! And the cost of patent litigation is not just monetary, but includes also the time that most patent cases take. More and more patent infringement cases are brought every year, typically taking two-plus years to get resolved, while many others languish for more than six years in trial court and on appeal. While nanotechnology is still in its early years in terms of commercialization, we have recently witnessed an increasing number of patent infringement suits [5]. Because the markets for engineered nanomaterials are still emerging, most of these cases have not involved large potential monetary damage claims. As nanotech-based products increasingly penetrate the market, patent owners and accused infringers will be forced to address the expenses associated with patent litigation.
