Kelly and Krause

Firm Profile

Our clients know that developing a new idea or product requires time and money. Securing intellectual property rights can help prevent a new idea or product from being copied and “keep the playing field level” by deterring competitors from copying it and thereby saving time and money that would have otherwise been required to develop it themselves. Whether an intellectual property asset is infringed, however, is often a matter of one’s opinion. And, disputes have been known to arise, especially between competitors.

Patent litigation is known to be expensive and time consuming. It is also fraught with risk. Surveys by the American Intellectual Property Law Association show that the average cost of a patent infringement can easily exceed one million dollars in legal fees. A patent lawsuit can also take years to decide all the while making business decisions significantly more difficult to make. In addition to the legal fees spent conducting the litigation, losing a patent infringement lawsuit can mean an injunction and a damage award measured in millions of dollars.

Because patent litigation is so costly, a portfolio of patents actually discourages litigation, at least between competitors. If litigation becomes necessary, a portfolio of patents can also help settle a dispute on terms more favorable to the portfolio owner than they would have been otherwise.

Developing a portfolio of enforceable patents can take years. The costs associated with the preparation, filing, prosecution and issuance of patent applications and the associated maintenance fees after issuance can be significant. But, not having at least some form of an IP portfolio usually proves to be even more expensive. The true cost of a patent portfolio includes both monetary and non-monetary costs. Monetary costs are easily determined but non-monetary costs difficult to determine.

Patents that are litigated are usually ones that claim an invention too narrowly, or which are ambiguous even to the expert witnesses, who are always summoned by litigants to opine on what a patent claim really covers. Broad patents and which are well-written are rarely litigated. The true cost of a patent thus includes the monetary costs, measured in part by the fee of the attorney who prepared the original application, but it also includes the non-monetary cost, which is determined by the skill and experience of the attorney who prepared the application but which isn’t really paid in full until long after the attorney’s fee has been paid.

Experience matters. We are intellectual property practitioners with multiple years of IP law experience on top of years of industry experience as technologists. We create value by turning ideas into assets.