Contingent Fee Patent Litigation

1. Contingent Fee Patent Litigation • What is contingent fee patent litigation? • Why consider taking a patent case on contingency? • How do you evaluate a contingent fee opportunity? • Pitfalls of contingent fee patent litigation • Lessons learned

2. What Is Contingent Fee Patent Litigation? • Varieties • % of the recovery • Blended fee arrangement • Others

3. Why Consider Taking a Patent Case on Contingency? • Opportunity for lawyers to make more than they would have on a fee-for-services basis • Enables patentees who can’t afford the fees associated with patent litigation to enforce their patent rights • The system shouldn’t just serve the corporation with deep pockets

4. How Do You Evaluate a Contingent Fee Opportunity? • Examine the prospective parties • Prospective plaintiff • How good is the technology? • How good are the witnesses? • What’s their track record? • Prospective defendant • How litigious are they? • Do they settle? • What’s their reputation? • How good are their attorneys?

5. How Do You Evaluate . . . Cont’d • Estimate likelihood of success • Infringement • Validity • What are the prospects of counterclaims? • Likelihood of prevailing at trial

6. How Do You Evaluate . . . Cont’d • Estimate potential recovery • Method of calculating damages • Past damages • Future damages • Attorneys’ share • Investment

7. Pitfalls of Contingent Fee Patent Litigation • Client’s version of the facts not always accurate • Clients don’t always behave reasonably • Difficult to withdraw, particularly during litigation • Example: ABCO/Hasel litigations

8. Lessons Learned • Make sure client is trustworthy • Make sure client is reasonable • Recognize withdrawal during litigation is difficult • Think twice about contingent fee litigation that requires possibility of multiple litigations where those litigations, even if won, are not profitable on their own