Costs play an important role for business when making decisions to file and prosecute patent applications through to the grant of patents.  These costs can run into the 10’s of thousands of dollars for protection in one or more countries.  But the cost of obtaining protection sometimes pales in comparison to the cost of patent litigation.

In the Federal Court of Canada supplemental reasons for judgment between ABB Technology AG and Hyundai Heavy Industries Co., Ltd. (2013 FC 1050 – October 17, 2013), the defendant put forth that its actual legal costs were $2,809,161 and all of its disbursements were $451,733.81.  This amount totals over $3.25 Million for a trial.

The court awarded party-to-party costs of only $350,000.  The claim for disbursements was not determined because the amounts sought were not sufficiently detailed to allow for proper assessment.  So it would appear that the successful defendant is on the hook for close to $2.45 Million of legal fees for its defense of the patent law suit as well as more time and money required to determine the amount to be awarded for disbursements.  All of this most likely does not include the in-kind contribution costs made by the defendant’s employees.  It also represents only the costs on one side of the matter.

The patent law suit involved 2 issued Canadian patents and while tried in Canada, much of the evidence was held elsewhere in Germany and Korea.  One might argue that such out of country expenditures are becoming more common in the global economy and with the ability of inventors to communicate and collaborate with each through the Internet.

The legal costs associated with patent litigation in Canada play to the seriousness of being involved in a patent law suit.  Clearly, one would expect the business case for commencing patent litigation to be substantially more than legal costs incurred.

I am still a proponent for innovative corporations applying for patents and believe that the business case for filing patents should not be deterred by the costs of litigation.  A patent is a business tool – it is up to the patent holder to determine how to use that tool and if there is a sound business case for litigation.