Wealth of Ideas Newsletter, April 2010
Last month, we told you about how General Patent Corporation examines each infringement claim to determine its merit, and chooses and manages the right law firm for each case.
This month, we continue our discussion of the General Patent “Suite of Services” with a comprehensive look at the many expenses GPC underwrites, our expertise in licensing negotiations, and how we even maintain the patent and monitor royalty payments once the deal is done.
9. GPC Underwrites All Litigation Expenses: Among all civil litigation, patent infringement is among the most expensive, second only to anti-trust litigation. Known in legal parlance as “disbursements,” litigation expenses are the out-of-pocket costs involved in prosecuting a lawsuit. The many expenses GPC covers in the course of a patent enforcement campaign include:
a. Filing Fees: While these are not a major cost, they can run into the thousands of dollars, especially if there are multiple defendants (as there often are).
b. Travel Costs: These can be substantial, especially if fact-witnesses are scattered all over the country or, worse yet, all over the world – which is often the case with multi-national infringers.
c. Depositions: Witnesses need to be deposed. That is, they are questioned by the attorneys litigating the case prior to actually testifying in court. This is part of the process known as “discovery.” These depositions must be recorded by a court stenographer and transcribed to produce a written document. We sometimes also videotape depositions of important witnesses, which can be quite expensive.
d. Expert Witnesses: Patent infringement litigation always requires testimony from experts. In fact, patent infringement litigation is often called a “battle of the experts.” Every patent case requires technical experts who testify on the questions of infringement, plus damages experts who testify on the issues of damages and reasonable royalties. Some cases require additional experts, such as licensing experts who testify about licensing practices, and patent experts who respond to questions about Patent Office procedures and inequitable conduct.
The choice of experts and their testimony is crucial to successful litigation. This is no place to cut corners and look for bargains! GPC has worked with some of the very best experts in these areas, and we spare no expense in securing the services of the most capable and talented expert witnesses.
e. Trial Demonstratives: Many cases settle before they reach trial, but we never count on this happening. Well before the trial is scheduled, we prepare for it. This involves preparing technical tutorials that are needed when the technology is complicated. Trial demonstratives can include audio-visuals such as PowerPoint presentations, videos, charts, graphs and diagrams. In addition, scale models, prototypes, props and displays will be used to illustrate the infringement theories and drive home important points for the jury.
No expense is spared to create and prepare trial demonstratives that will help convince a jury to deliver a favorable verdict for the patent owner!
f. Jury Consultants: When a lot of money is at stake, nothing is left to chance. It has become increasingly common in recent years for litigators to rely on jury consultants to help them select jurors who will be sympathetic to their client and their client’s claims. Jury consultants are usually psychologists who help attorneys select winning arguments and the language that will most effectively deliver these arguments.
g. Mock Jury Trials: Mock jury trials are essentially dress rehearsals. The jury consultant goes to the city in which the trial will take place and hires “jurors” from the same pool of people from which the actual jury will be selected. These hired “jurors” represent not only the mentality of the actual jurors who will hear the case, but they also share the socio-economic strata, education, ethnicity and demographics of the jury that will hear the case.
The attorneys split into plaintiff and defense teams, and the two teams try the case before the hired jurors. Several mock juries are recruited, and the trial is repeated several times with different juries using different arguments and approaches. Jury deliberation is video-recorded and scrutinized to see what issues the jurors focus on, what arguments work with the jurors, and what arguments do not.
While this is a very useful process, it is also very expensive. That is why they are most often used only by well-heeled corporate litigants with millions at stake.
h. Reexaminations and Continuations: If the patent goes into reexamination, or we decide to file for a continuation or continuation-in-part, General Patent pays for a patent attorney to prosecute reexaminations or continuations of the patent before the Patent Office.
10. Settlement Negotiations: While General Patent and the attorneys we engage to litigate each lawsuit are prepared to go to trial, many lawsuits never make it to trial. Instead, the parties decide to settle before going to trial in what is known as an “out-of-court settlement.” Both the attorney litigating the case and GPC’s legal and licensing professionals are involved in these negotiations.
General Patent’s three decades of experience in negotiating settlements of hundred of patent infringement cases is unmatched. Negotiating license agreements and settlements of lawsuits is like a game of chess – one has to have a strategy and every move has to anticipate the courter-move of the opponent. We take pains developing a negotiating strategy in which every move and counter-move is prepared in advance.
General Patent professionals are skilled in alternative dispute resolution (ADR) techniques, so GPC clients are represented by some of the most skilled negotiators in the industry.
11. Licensing Negotiations: We refer to General Patent as a “patent licensing and enforcement” firm because we do not always have to go to court to secure compensation for our clients. It is not uncommon for us to file patent infringement lawsuits against two or three infringers. Once we win or settle with one or two lawsuit defendants, we may be able to negotiate licenses with other infringers without having to file lawsuits against each and every one of them.
GPC handles all license negotiations, and over the years we’ve negotiated hundreds of patent license agreements. For just one client, Acticon Technologies, we negotiated over 150 separate licenses!
12. Monitor Royalty Payments: Once we have licensed a patent for a client, General Patent continuously monitors the licensees to make sure each licensee pays all monies due the patent owner in a timely matter. Since some licensing agreements are based on dollar or unit sales of the product that uses the patent, GPC maintains the right to audit the licensee’s books to make sure that you, as the patent owner, are paid every penny you are owed under all license agreements.
13. Maintain the Patent: General Patent also makes sure that its clients’ patents are properly maintained. That includes making sure that all patents are docketed in our system, and all maintenance fees are paid so the patent remains in force over its full term.
All of these services are provided at no up-front charge to you, the patent owner, but as part of the overall patent licensing and enforcement campaign that General Patent Corporation manages and finances on behalf of the patent owner on a 100% contingency basis.
We hope this two-part series has shown you just how comprehensive GPC’s services truly are. From determining infringement to finding and negotiating with additional infringers, from retaining a law firm to maintaining the patent, GPC does it all. We invite your questions about our services – and if you have a patent or patents that you believe are infringed, we will gladly review your case at no cost or obligation on your part. Contact us at email@example.com to get started.