US jurisdiction report: ITC patent lawsuit as an alternative

The attorney begins by confirming that, after a thorough examination of the company’s patents and their file histories, the competitor is infringing claims of one or more valid and enforceable US patents. The patent attorney goes on to explain that the company has the right to immediately commence a patent infringement lawsuit in federal court against the competitor and that he can represent the company as lead counsel.

The board’s chairman then has three questions for the attorney, namely: what will be the cost to the company and the time frame involved to pursue an infringement action through trial, and will the attorney be willing to handle such a litigation on a contingency fee basis? The attorney tells the board that the cost of the litigation could run to $5 million over a three to five-year period and, no, he will not be willing to handle the case on a contingency fee basis.