US patent lawyer and a partner at Kirkland & Ellis LLP in Chicago, Russell E. Levine, has neatly summarised noteworthy points of difference between US and Australian patent law litigation. His article, "Making it under US patent litigation", appeared in Lawyer's Weekly, a LexisNexis publication in Australia.
The headings and paragraphs below are extracts from his article. They are selected to highlight differences between Australian and United States patent litigation.
A jury decides validity In US patent infringement litigation, the issues of infringement and validity of the asserted patent are decided by a jury. [Our comment: In contrast to Australia, jury trials are a feature of US commercial litigation.]
Filing to trial can take two years Although it varies from district to district, the time from filing to trial in a typical US patent infringement suit is two years. Approximately one year of this two-year period is spent conducting discovery, which includes document production, written interrogatories and depositions. [Our comment: Heavy discovery costs also exist in Australia.]
Some jurisdictions are known as “rocket dockets”. In these jurisdictions a case can go from filing to trial in less than a year. These rocket dockets, such as the Eastern District of Texas, have a high percentage of patent cases as a part of their docket.
US patent litigation is expensive The American Intellectual Property Law Association (AIPLA) conducts a bi-annual economic survey that includes an assessment of the total cost of patent litigation. For patent cases in which the amount in dispute exceeded US$25 (A$30) million, the AIPLA survey reported that the average cost in 2001 was US$2.99 9 (A$3.6) million and in 2003 US$3.99 (A$4.8) million and in 2005 was US$4.5 (A$5.4) million. When the 2007 survey is released later this year, the average cost is likely to exceed US$5 (A$6) million. [Our comment: Patent litigation in Australia is also among the leaders in legal costs in commercial litigation in Australia.]
The loser doesn’t have to pay US patent litigation is governed by what’s known as the “American Rule”. The American Rule is that attorney fees are not awardable to the winning party (i.e. each litigant must pay his own attorney fees) unless statutorily or contractually authorised. [Our comment: A general rule in commercial litigation in Australia is that a court's decision on who pays legal costs follows its decision on the merits of the case. Hence usually the loser of the case pays both its own legal costs and a substantial portion of the legal costs of the winner. There is a belief in Australia that this discourages litigation. Over the years statistics on the level of litigation in say Sydney don't seem to neatly support this belief.]