RPX Corp IPRs: Balancing Effectiveness vs. Cost
`
`IPRs: Balancing
`Effectiveness vs. Cost
`
`June 17, 2016
`
`Page 1 of 3
`
`
`
`Our continued study of inter partes review (IPR) as a potentially cost-effective
`alternative or adjunct to district court litigation shows that IPRs are relatively
`cheap per petition—but single-petition IPR strategies are not always sufficient.
`Multi-petition strategies, on the other hand, can cost millions. Whether IPR is a
`cost-effective strategy to deal with a patent assertion or an expensive detour
`depends on the chosen strategy and the circumstances of the campaign.
`
`The cost baseline
`
`Data confirm that an IPR generally costs in the six figures. Most range from about
`$100,000 to $700,000, depending on the litigation stage reached. As illustrated by
`the percentiles, costs vary widely even at the same stage; indeed, some petitions
`cost more just to file than others cost to reach final decision. This variation likely
`reflects case-specific circumstances that drive costs. For example, some
`petitioners use a “copycat” strategy, filing a petition that lifts the arguments from
`an existing IPR that the new petitioner then seeks to join. Such a petition requires
`far less counsel time, which is the most significant component of cost.
`
`Figure 1: Median and Range of Costs per IPR Petition (Cumulative, by Stage)
`
`https://www.rpxcorp.com/intelligence/blog/iprs-balancing-effectiveness-vs-cost/
`
`
`
`Bradium Exhibit 2029
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 1 of 3
`
`
`
`IPRs: Balancing
`Effectiveness vs. Cost
`
`June 17, 2016
`
`Page 1 of 3
`
`
`
`Our continued study of inter partes review (IPR) as a potentially cost-effective
`alternative or adjunct to district court litigation shows that IPRs are relatively
`cheap per petition—but single-petition IPR strategies are not always sufficient.
`Multi-petition strategies, on the other hand, can cost millions. Whether IPR is a
`cost-effective strategy to deal with a patent assertion or an expensive detour
`depends on the chosen strategy and the circumstances of the campaign.
`
`The cost baseline
`
`Data confirm that an IPR generally costs in the six figures. Most range from about
`$100,000 to $700,000, depending on the litigation stage reached. As illustrated by
`the percentiles, costs vary widely even at the same stage; indeed, some petitions
`cost more just to file than others cost to reach final decision. This variation likely
`reflects case-specific circumstances that drive costs. For example, some
`petitioners use a “copycat” strategy, filing a petition that lifts the arguments from
`an existing IPR that the new petitioner then seeks to join. Such a petition requires
`far less counsel time, which is the most significant component of cost.
`
`Figure 1: Median and Range of Costs per IPR Petition (Cumulative, by Stage)
`
`https://www.rpxcorp.com/intelligence/blog/iprs-balancing-effectiveness-vs-cost/
`
`
`
`Bradium Exhibit 2029
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 1 of 3
`
`
`
`RPX Corp IPRs: Balancing Effectiveness vs. Cost
`
`Page 2 of 3
`
`Stays and multiple petitions
`
`A one-patent NPE litigation campaign could easily be neutralized by one six-figure
`IPR petition. With a stay in the district court, that particular IPR becomes a cheap,
`fast alternative to litigating through a seven-figure summary judgment or jury
`verdict. But consider an NPE campaign in which multiple patents are asserted. To b
`effective here, an IPR strategy could require a petition against several of the
`asserted patents, if not all. Too few petitions, and the IPR strategy could end up
`adding significant costs while addressing only a portion of the issues in the case.
`Worse, if the IPR strategy will not streamline the issues, the court might decline to
`stay the litigation—also depending, of course, on the court’s view of other
`circumstances, such as the timing of the request—which eliminates the savings
`advantage of the stay.
`
`Our study suggests that many petitioners file at least two or three IPR petitions per
`litigation campaign—in a sense an IPR “campaign” of its own. This doubles or
`triples the typical cost of the IPR strategy. Such a strategy, if taken to final decision,
`appears to cost over $700,000 and could reach the millions.
`
`Figure 2: Average Cost of an IPR Campaign
`
`Deeper pockets required
`
`All that said, it is no surprise that most of the top IPR petitioners by volume are high
`revenue tech companies (page 22, Table 1: RPX 2015 Report: NPE Litigation,
`Patent Marketplace, and NPE Cost). These companies can handle the variable
`costs of the strategy and can afford to spread the risk of the occasional loss across
`
`https://www.rpxcorp.com/intelligence/blog/iprs-balancing-effectiveness-vs-cost/
`
`Bradium Exhibit 2029
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 2 of 3
`
`
`
`RPX Corp IPRs: Balancing Effectiveness vs. Cost
`
`Page 3 of 3
`
`multiple cases. Then again, that risk is increasing: IPR institution rates have
`dropped to about 60%, and final decision outcomes now hover around 50-60%
`fully in favor of the petitioner (pages 17-18, Charts 23-24: RPX 2015 Report).
`About another 25-35% come out partly in their favor, but such partial victories
`can be problematic: if even one challenged claim survives and that claim
`supports a strong allegation of infringement, the patent may actually emerge
`from the filing stronger than before, with the Patent Trial and Appeal Board’s
`stamp of approval.
`
`Still, a well-resourced and experienced petitioner might view even a million-
`dollar IPR strategy with a 60% likelihood of success as a good settlement lever in
`a tough case, since IPR provides other tactical advantages. Smaller companies,
`on the other hand, will find it more difficult to absorb that high cost alone.
`
`We will continue our study of IPRs to bring insight into what makes this strategy
`effective. High-level findings—including all of the above—from our ongoing IPR
`cost study are collected in our 2015 Report: NPE Litigation, Patent
`Marketplace, and NPE Cost (with data on success rates and other metrics
`related to IPR activity available in the Litigation section, pages 16-24). Our
`complete IPR cost findings are available only to participants in the study.
`Comments or questions about the data and inquiries about participation in the
`study are welcome at reports@rpxcorp.com.
`
`© 2008-2018 RPX Corporation. All
`rights reserved.
`
`https://www.rpxcorp.com/intelligence/blog/iprs-balancing-effectiveness-vs-cost/
`
`Bradium Exhibit 2029
`Unified Patents Inc. v. Bradium Technologies LLC
`IPR2018-00952
`Page 3 of 3
`
`
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