To Sue or Not to Sue
If you do catch someone infringing your patent, you may decide to sue for damages. This can be a costly exercise. According to Stephen R. May, former manager of Intellectual Property Services Department at Pacific Northwest Laboratory in Richland, Washington, “a full-blown patent lawsuit that actually goes to trial will probably cost a minimum of $75,000 to $100,000, although a very simple case could cost less.” In most instances, May reports, the costs can be $250,000 and up.
His advice to inventors: “If you believe someone is infringing your patent, an attorney can draft a ‘cease and desist’ letter, possibly for as little as a few hundred dollars. This might resolve the matter if the infringer ceases, but in many cases it does not.”
The expensive part of any lawsuit is “discovery,” in which you and the infringer exchange documents and take depositions of potential witnesses. The photocopying bill alone could run into the thousands of dollars, and the process could last anywhere from six months to several years. Trials tend to run from one to six weeks, with decisions rendered in a matter of days in the case of a jury, or as long as several months if the verdict is by a judge. If you lose, appeals take more time and money.
Each time I get involved with a lawyer to defend a patent or trademark, money seems to disappear from my bank account. So it’s best if you can work things out between yourself and the infringer and not hire counsel. Both sides benefit. If you need to hire a lawyer, you might want to try for a contingency deal—i.e., the lawyer might take a third of any recovery instead of charging you.
Fast Facts
Rod G. Martin, inventor of the foam helicoid football, offered to license nonexclusive rights to manufacture his proprietary football design to Marvlee, which was found making it without permission. Marvlee declined. So Martin took Marvlee to court for patent infringement. Federal Judge James Ware ruled that Marvlee’s grooved foam footballs infringed Martin’s U.S. patent. The judge awarded damages of $282,183 plus interest. Finding the infringement to have been willful, Ware added Martin’s legal fees. The total judgment against Marvlee came to $1.23 million. The suit to safeguard his intellectual property would never have come to pass had Marvlee agreed to pay Martin a fair royalty.
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