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Obiter dicta on costs of patent litigation and the extravagance of discovery

As paraphrased in MOFO Tech, Spring/Summer 2012 at 18, an appellate judge made two intriguing statements, one about the relative costs of intellectual property cases – presumably patent cases – and the other about discovery’s wastefulness.


Federal Court of Appeals Chief Judge Randall R. Rader “noted that IP cases were nearly two-thirds more expensive than others.”  The article does not explain the judge’s data that supports his assertion and it would require extensive research to clarify and substantiate it. A judge would not know how much the parties spend during litigation, generally speaking, and would not have a representative sample of cases from which to derive the metrics underlying the remark.


Judge Rader also observes “less than 1 in 10,000 of all documents found in discovery ending up in a trial exhibit.”  The drastic shrinkage from the point of location of potentially discoverable documents, or even from the smaller set of documents formally produced, to those introduced into trial is not at all surprising. For one, it is a rare lawsuit that proceeds all the way to trial. Thus, documents might have been quite telling before that.