First, discovery in patent cases—in the form of document requests, interrogatories, witness depositions, and expert reports—is a significant source of these hidden costs. Within weeks of beginning a patent case, each party serves document requests upon the other. These requests require the opponent to search for documents relating to the patent infringement allegations in the complaint.
In responding to these requests, outside counsel, unfortunately, is of limited help, as only the company actually knows what documents it has and where they are located. Additionally, data collection is a complicated process, requiring searches of hard copy and electronic sources, accumulated over a period of many years.
Litigants might assume that only limited documents need be turned over, but compilation of records from one source is rarely sufficient in a patent case that typically requires the disclosure of technical product development, marketing, executive, and sales documents.
Employees from many departments must be diverted from their daily responsibilities to assist in locating relevant information. In many cases, these are key R&D personnel who may be diverted from focusing on projects vital to the company’s future prospects.
Costs inflate further when depositions begin. Witnesses, often as many as a dozen or more, must be prepared for depositions by meeting with lawyers, usually for at least a day. In patent cases involving older technology (patents can live for 20 years), some of the key witnesses may no longer work for the company, making preparation difficult and more costly. In situations where there is animosity between the litigant and the former employee, there are additional logistical costs and risks associated with the provision of such testimony.