Lawyers' Decisions in Australian Patent Dispute Settlements: An Empirical Perspective

Abstract

Litigating patents is an expensive proposition for both patent holders and alleged infringers. Indeed, it has been 'called the sport of kings; it is complex, uncertain and expensive'. The last factor, expense, has almost become a mantra in analysis of patent litigation. It is often, for example, cited as the main motivation for parties to settle a dispute, rather than proceed all the way to judgment in a court. There is, however, little empirical research into the relative importance of cost in the conduct of disputes between patent-holders and their competitors. The decisions relating to patent litigation are the subject of a significant amount of research around the world currently, much of it with a focus on reducing the amount of unnecessary litigation that is considered to occur. This article describes the results of empirical research that approaches this issue from two directions - an examination of the use of settlement procedures in Australia and an assessment of the processes adopted by lawyers when considering issues around patent litigation.