3/7/2017
`
`The CostEffectiveness of PTAB Proceedings | PTAB Blog
`
`Foley Hoag LLP (http://www.foleyhoag.com)
`The CostEffectiveness of PTAB Proceedings (http://www.ptab
`blog.com/2015/11/13/thecosteffectivenessofptabproceedings/)
`Posted on November 13th, 2015 (http://www.ptabblog.com/2015/11/13/thecosteffectivenessofptabproceedings/) by Philip Swain (http://www.ptabblog.com/author/pswain/)
`
`(http://www.ptabblog.com/wpcontent/uploads/sites/13/2015/11/image001.jpg) PTAB litigation is
`less expensive and faster than the old ways.
`
`An old joke about patent litigation among trial counsel that produces cringes when told to clients
`is that patent litigation is known as the “sport of kings.” That is because of the great expense of
`investigating, pleading, discovery, motion practice, expert discovery, pretrial preparation, and
`trial in a traditional patent case. Like that other sport of kings, horse racing, often only the most
`wellheeled can afford to play and finish the game.
`
`So one of the main objectives of the America Invents Act of 2011 was to establish an alternative to those expensive proceedings.
`Thus the Patent Trial and Appeal Board was born, with the objective, among other things, of offering a costeffective alternative to
`expensive district patent litigation.
`
`How costeffective is the PTAB? A comparison of the best source of statistics on the cost patent litigation, the American
`Intellectual Property Law Association’s Annual Report of the Economic Survey, prepared under the Direction of the AIPLA’s Law
`Practice Management Committee (based on voluntary selfreporting by survey participants), indicates that PTAB proceedings are
`indeed considerably less expensive than district court patent litigation. While the survey says that the median cost of traditional
`patent litigation for medium sized ($10 – $25 million at risk) patent litigation will cost $3.1 million to trial (up slightly from the
`median cost in 2011, before the AIA, when a medium sized patent litigation ($1 million to $25 million at risk) was $2.5 million, the
`survey reports that the median cost for completing a PTAB proceeding (through appeal) is $350,000.
`
`The difference in costs is dramatically illustrated below:
`
` (http://www.ptabblog.com/wp
`content/uploads/sites/13/2015/11/image003.png)
`
`(Source: American Intellectual Property Association 2015 Report of the Economic Survey.)
`
`Moreover, PTAB proceedings are faster. According to statistics compiled from Lex Machina, the median time from filing to trial
`for a patent infringement case nationally is approximately two years, three months (814 days). Whereas the average time for final
`decision in the PTAB, from filing of the petition until final decision by the PTAB, is one year, six months (531 days).
`
`While the time difference is not quite as stark as the cost difference, the PTAB time bars (below) are still considerably shorter than
`the district court time bars.
`
`http://www.ptabblog.com/2015/11/13/thecosteffectivenessofptabproceedings/
`
`GPSNA Ex. 1020
`
`1/3
`
`1
`
`
`
`The CostEffectiveness of PTAB Proceedings | PTAB Blog
`
`Foley Hoag LLP (http://www.foleyhoag.com)
`The CostEffectiveness of PTAB Proceedings (http://www.ptab
`blog.com/2015/11/13/thecosteffectivenessofptabproceedings/)
`Posted on November 13th, 2015 (http://www.ptabblog.com/2015/11/13/thecosteffectivenessofptabproceedings/) by Philip Swain (http://www.ptabblog.com/author/pswain/)
`
`(http://www.ptabblog.com/wpcontent/uploads/sites/13/2015/11/image001.jpg) PTAB litigation is
`less expensive and faster than the old ways.
`
`An old joke about patent litigation among trial counsel that produces cringes when told to clients
`is that patent litigation is known as the “sport of kings.” That is because of the great expense of
`investigating, pleading, discovery, motion practice, expert discovery, pretrial preparation, and
`trial in a traditional patent case. Like that other sport of kings, horse racing, often only the most
`wellheeled can afford to play and finish the game.
`
`So one of the main objectives of the America Invents Act of 2011 was to establish an alternative to those expensive proceedings.
`Thus the Patent Trial and Appeal Board was born, with the objective, among other things, of offering a costeffective alternative to
`expensive district patent litigation.
`
`How costeffective is the PTAB? A comparison of the best source of statistics on the cost patent litigation, the American
`Intellectual Property Law Association’s Annual Report of the Economic Survey, prepared under the Direction of the AIPLA’s Law
`Practice Management Committee (based on voluntary selfreporting by survey participants), indicates that PTAB proceedings are
`indeed considerably less expensive than district court patent litigation. While the survey says that the median cost of traditional
`patent litigation for medium sized ($10 – $25 million at risk) patent litigation will cost $3.1 million to trial (up slightly from the
`median cost in 2011, before the AIA, when a medium sized patent litigation ($1 million to $25 million at risk) was $2.5 million, the
`survey reports that the median cost for completing a PTAB proceeding (through appeal) is $350,000.
`
`The difference in costs is dramatically illustrated below:
`
` (http://www.ptabblog.com/wp
`content/uploads/sites/13/2015/11/image003.png)
`
`(Source: American Intellectual Property Association 2015 Report of the Economic Survey.)
`
`Moreover, PTAB proceedings are faster. According to statistics compiled from Lex Machina, the median time from filing to trial
`for a patent infringement case nationally is approximately two years, three months (814 days). Whereas the average time for final
`decision in the PTAB, from filing of the petition until final decision by the PTAB, is one year, six months (531 days).
`
`While the time difference is not quite as stark as the cost difference, the PTAB time bars (below) are still considerably shorter than
`the district court time bars.
`
`http://www.ptabblog.com/2015/11/13/thecosteffectivenessofptabproceedings/
`
`GPSNA Ex. 1020
`
`1/3
`
`1
`
`
`
`3/7/2017
`
`The CostEffectiveness of PTAB Proceedings | PTAB Blog
`
` (http://www.ptabblog.com/wp
`content/uploads/sites/13/2015/11/image005.png)
`
`* Median time to termination (all cases, including settlement, dismissal, summary judgment, etc.)
`† Median time to termination (all PTAB trials, including settlement, denial of institution, etc.)
`(Source: Lex Machina)
`
`CONCLUSION
`
`While the PTAB is still a relatively new tribunal, and the economic cost statistics are still being developed by law firms and
`attorneys, it seems clear that the PTAB proceedings are indeed a costeffective alternative to patent litigation. At the very least,
`they are an important arrow in the quiver of every party facing the defense of a potential patent infringement claim.
`
`For more on the relative advantages of the PTAB, see the article “Good, Fast, Cheap Certainty: The Case for Patent Office
`Litigation (http://www.ptabblog.com/2015/11/04/goodfastcheapcertainty/) ” by my partners Walter Egbert and Scott Kamholz.
`
`Copyright © 2017, Foley Hoag LLP. All rights reserved.
`
`TAGS: CBM (http://www.ptabblog.com/tag/cbm/) , IPR (http://www.ptabblog.com/tag/ipr/) , patent litigation (http://www.ptabblog.com/tag/patent
`
`litigation/) , statistics (http://www.ptabblog.com/tag/statistics/)
`
`CATEGORIES: CBM (http://www.ptabblog.com/category/cbm/) , IPR (http://www.ptabblog.com/category/ipr/) , Patent Litigation (http://www.ptab
`
`blog.com/category/patentlitigation/)
`
`(#)
`
`(#)
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`Comments (http://www.ptabblog.com/2015/11/13/thecosteffectivenessofptabproceedings/#respond)
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`3/7/2017
`Attorney advertising.
`Prior results do not guarantee
`a similar outcome.
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`The CostEffectiveness of PTAB Proceedings | PTAB Blog
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`http://www.ptabblog.com/2015/11/13/thecosteffectivenessofptabproceedings/
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