What are the costs typically incurred by each party to patent litigation proceedings at first instance? What are the typical costs of an appeal at each appellate level?

Patent Litigation

Australia Small Flag Australia

Costs in the Federal Court will vary widely depending on the nature of patent proceedings. The importance of expert evidence in patent proceedings is a factor in costs. Costs on appeal are typically much less because no new evidence is generally allowed.

Austria Small Flag Austria

The costs include attorney and court fees, expenses for experts and translations and, if main proceedings are lost, the reimbursable costs of the prevailing party.

Court fees, as well as the reimbursable attorney fees of the prevailing party, depend on the amount in litigation, which is set by the plaintiff when filing the PI request or complaint. The amount in litigation is a value to be chosen by the plaintiff more or less according to its own discretion.

Court fees have to be paid separately for the first instance as well as the second and third instance proceedings. A response to a suit or an appeal does not trigger any court fees.
Legal fees usually include the cost of a patent attorney, since they are retained to assist the representing attorneys-in-law with the technical questions of the case. Since attorneys-in-law and patent attorneys are by statue not allowed to form a law firm together, the patent attorney has to come from a separate firm.

The actual costs highly depend on the complexity and duration of the case and the value in dispute and typically range between EUR 20,000.- to EUR 120,000.- for first instance PI proceedings and between EUR 10,000.- to EUR 60,000.- for second and third instance proceedings. The cost of main proceedings is comparable but typically lower if the main questions have been dealt with in previous extensive PI proceedings.

Brazil Small Flag Brazil

Depends on the complexity of the case. From 100k USD to 2MI USD.

Canada Small Flag Canada

The costs of litigation will depend greatly on the complexity of the litigation and the subject patent(s), as discussed further below.

China Small Flag China

The typical costs of proceedings to first instance judgment on infringement/validity comprise court fees, investigation and evidence collection fees (e.g. notary fees, document copy fee), attorney fees. For the appeal, the typical costs comprise court fees, attorney fees and sometimes investigation and evidence collection fees. For the retrial phase, which is not an appellate level but a trial supervision procedure, no court fees would be charged.

Czech Republic Small Flag Czech Republic

The costs range widely depending on the type of patent and the plaintiff and defendant. Expert report costs, laboratory testing, translations and legal fees form the major expenses. Apart from legal fees these expenses are likely to be recovered in full on success.

We would expect the first instance proceedings to cost between 50,000 USD to 100,000USD and around 50,000USD appeal. Complex cases can incur much higher costs.

France Small Flag France

There are no court fees to bring proceedings before French courts.
Either for first instance or the appeal proceedings, the costs depend on the complexity of the case (technology, national or cross-border patent dispute, number of patent claims number of prior art documents):

  • for a simple case: €100,000 to 200,000;
  • for a middle case: €200,000 to 400,000;
  • for a complex case: above €400,000.
  • Pharmaceutical and Telecom cases are always more expensive as and so are the cross-border patent cases and cases based on European patents.

Germany Small Flag Germany

Court fees and reimbursable attorneys’ fees depend on the value in dispute which is set by the court and essentially corresponds to the commercial value of the case. The value of a standard patent infringement case is around €1m. The following table shows fees for values in dispute of €1m and €5m in the 1st and 2nd instance in infringement and nullity actions.

Infringement action

 

Value: € 1m

Value: € 5m

 

1. Instance

2. Instance

1. Instance

2. Instance

Court fees

€ 16,000

€ 21,300

€ 59,200

€ 78,900

Attorney’s fees

€ 11,800

€ 13,200

€ 41,800

€ 46,800

Patent attorney’s fees

€ 11,800

€ 13,200

€ 41,800

€ 46,800

Total

€ 39,600

€ 47,700

€ 142,800

€ 172,500

Nullity action

 

Value: € 1m

Value: € 5m

 

1. Instance

2. Instance

1. Instance

2. Instance

Court fees

€ 24,000

€ 32,000

€ 88,800

€ 118,400

Attorney’s fees

€ 11,800

€ 14,600

€ 41,800

€ 51,800

Patent attorney’s fees

€ 11,800

€ 14,600

€ 41,800

€ 51,800

Total

€ 47,600

€ 61,200

€ 172,400

€ 222,000

Greece Small Flag Greece

The costs that may be involved in a patent litigation case through to a first-instance decision are quite difficult to estimate due to the involvement of a multitude of factors, such as complexity of the case, duration of the proceedings, involvement of experts and translation costs. Nevertheless, the costs of preliminary proceedings and main patent proceedings can be roughly estimated at a range between 14,000€ and 30,000€, but higher fees have to be expected in complicated cases where several technical experts must be involved and close cooperation between client and counsel in necessary for an extended period of time.

India Small Flag India

The minimum court fees in a suit for patent infringement at the Delhi High Court is 2,00, 000.00 INR (approx. 2800 USD). The cost of litigation varies depending upon the counsel fees, complexity of the proceedings, interim proceedings etc.

Ireland Small Flag Ireland

The costs incurred will vary greatly and will depend on such factors as the length and complexity of the proceedings, the length of the trial and the amount of pre-trial applications involved. The award of costs is always a matter for the discretion of the trial judge; however costs generally follow the event. The general rule is that costs are awarded against the losing party.

Israel Small Flag Israel

Costs of patent litigation vary depending on the complexity of the matter and the technology. There is no ‘general’ ballpark cost-estimate for different cases involving different technologies and different levels of complexity. Nevertheless, it can generally be stated that patent litigation in Israel is cost-effective, in particular due to the limited scope of discovery when compared to US practice and the flexible procedure.

In general, it can be said that typical costs of appeal to the District Court on Patent Office validity decisions or appeal to the Supreme Court on District Court infringement decisions, are lower (about one half) than the costs of the first instance decision.

Italy Small Flag Italy

A party seeking to engage in patent litigation before Italian courts should consider attorney’s fees for no less than Eur 100K for the first instance, although figures can more than triplicate depending on the complexity and value of the technology at stake. Court fees are negligible, in the range of a few hundred euros.
The costs of appeal proceedings are generally lower as these normally do not imply a repetition of the complex technical assessments, but only a review of those already occurred during the first instance.

Japan Small Flag Japan

In the first instance, the plaintiff is required to prepare, as a filing fee for a lawsuit, the fees for the revenue stamps which are to be attached to the Complaint. In the appeal instance, the appellant is required to prepare the relevant filing fee for the appeal. These fees are calculated using a predetermined formula according to the amount in question.

Norway Small Flag Norway

 Proceedings (Infringement)

Proceedings (Invalidity)

Proceedings (Infringement and Invalidity)

 Appeal

Normally
EUR 200,000 –EUR 400,000

Normally
EUR 200,000 –EUR 400,000

Normally
EUR 400,000 –EUR 1000,000

In normal proceedings the costs will normally be the same before the Court of Appeal as before the first instance. Before the Supreme Court the costs will normally be significantly lower than before the lower Courts.

Poland Small Flag Poland

Court cost in patent cases can be divided in three major groups:

  • Entry fee
  • Court-appointed expert opinion costs
  • Other expenses (e.g. reimbursement of expenses borne by witnesses), which are rather insignificant.

The entry fee is normally calculated as 5% of the value of the dispute, no more that PLN 100,000. There are not statutory guidelines as to how the value of the dispute should be calculated; attorney apply different methods – all of which can be accepted if reasonable and duly corroborated.

If there are no grounds to calculate the value of the dispute, e.g. when neither the patented product nor the allegedly infringing product is yet on the market, a temporary entry fee of up to 1,500 PLN may be established.

The appeal fees are identical, although the first instance judgment should determine the value of the dispute used for calculating the regular entry fee.

Fees in PI proceedings are much lower – entry fee within the limit of several hundred PLN and the appeal fee of 20% of the entry fee.

Costs related to court-appointed expert opinions are difficult to predict as they are calculated on an hourly basis and depend on the complexity of the case as well as the amount of work done by the expert. They also vary a lot depending on the required field of expertise.

Portugal Small Flag Portugal

Two different aspects shall be considered:

(i) the value of the proceedings: The value of the proceedings in cases where patent rights (as immaterial rights) are at stake is typically set at € 30.000,01. In this case, each party will have to pay 1.224,00€ (in different phases of the proceedings and the judicial fee of the appeal is of 306,00€. However, the Court may set a different value for the case, considering different aspects, e.g., the amount of pecuniary interest of the claimant, the complexity of the case, which may lead to a substantial increase of the costs. In this case, it is hard to predict which will be the costs of the patent law suit.

(ii) the amount that each party shall pay at the end of the proceedings: according to Portuguese civil procedural law, at end of the proceedings, the Court will fix the responsibility of the parties for the costs to the extent to which the action was unsuccessful, being the due amount paid by the losing party directly to the Court.

(iii) Other administrative costs: translators, advisors to the court, experts.

Russia Small Flag Russia

The costs vary upon the complexity of litigation (e.g. number of court hearings in the first instance can be in the range of 3-15, there could be 1-7 experts involved, etc.). So the range of costs for the first instance patent infringement case would be from 20 to 150 thousand USD.

Appeal proceedings are far less time and effort consuming, so typical costs would be 15-40 thousand USD for an instance (usually case goes through two instances).

Singapore Small Flag Singapore

The costs incurred by each party will differ depending on the complexity of each case and the number of interlocutory applications taken out by the parties. Given the above, it is difficult to provide an estimate of such costs.

South Korea Small Flag South Korea

The litigation cost in Korea depends highly on various factors that are unique to each legal proceeding, including but not limited to the complexity of the underlying case, the volume of records, the necessity of examination by a court-appointed expert, and the arguments that will be made, and the contentiousness of the opposing party. Thus, public statistics on the legal cost is not available. Based on our experiences, typical cost for the first instance patent infringement action can range from hundreds of thousand dollars to millions of dollars (for complex cases), while the cost in the second instance, where the case is reviewed de novo, can range from approximately one to two-thirds of the cost in the first instance. Supreme Court proceedings cost approximately half the cost in the second instance.

Sweden Small Flag Sweden

First instance: Usually between EUR 300,000 and EUR 600,000 (infringement or invalidity) but the costs varies substantially based on the complexity of each case.

Second instance: Usually two thirds of the costs at first instance.

The costs before the Supreme Court is usually lower than before the lower courts.

Switzerland Small Flag Switzerland

The costs incurred by the parties depend on the specifics of the case. On average, a party should expect to incur between CHF 75,000 and CHF 250,000 to take a case through to a first instance decision. Costs may be higher in complex cases.

In addition, the unsuccessful party will have to bear the court costs and to compensate the successful party for its party costs. These procedural costs depend, in particular, on the value in dispute as well as on the scale and the complexity of the case.

Taiwan Small Flag Taiwan

For the plaintiff, the costs incurred at the first instance include court fees, attorney fees, and any expenses necessary for establishing the plaintiff’s case, such as the costs for testing the materials by an independent institute. If the plaintiff is a foreign company without a registered domicile in Taiwan, the defendant may request the court to order the plaintiff to post a bond that covers the court fees for the second and third instance.

For the defendant, the cost at the first instance is mostly the attorney fees.

At the appellate level, the party who appeals against the lower court’s ruling shall cover the court fees.

Thailand Small Flag Thailand

  • First instance level: USD 50,000 to USD 100,000 for a moderate case. A highly technical case involving a large amount of evidence and a number of expert witnesses could cost over USD 100,000.
  • Appellate level: USD 20,000 to USD 50,000. (Appeals are normally conducted by written submissions only.)

Turkey Small Flag Turkey

In general, the plaintiff bears the litigation costs until the end, and if the plaintiff is found rightful, the losing party bears the official litigation fees and official attorney fees of the counterparty.

In first instance, the official fees and expenses including the expert fee for the patent actions without claiming damages cost around TRY 3,000. If there is more than one expert panel appointed in the file, the costs may increase. The official attorney fee determined in line with the annual tariff declared by the Turkish Bar Union is TRY 3,931.

For appeals handled by the regional courts, the official fees and expenses are around TRY 200-250. If an additional expert report to be obtained before the regional courts, the costs may increase.

For appeals handled by the Court of Appeal, the official fees and expenses are around TRY 300- 350.

Professional attorneys’ fees may vary depending on the complexity of a case.

United Kingdom Small Flag United Kingdom

Fees are payable to the court for hearing the dispute. The claimant must pay an issue fee to the court in order to commence proceedings. This may be up to £10,000 for cases where the claimant seeks to recover in excess of £200,000, or £10,528 where a claim is for both damages and a declaratory non-monetary claim. Such fees are also payable by any counterclaimant, as if they were the subject of separate proceedings.

Trial fees of £1,090 are also payable on the multi-track (i.e. for cases worth over £25,000) and £545 on the fast track. Any party making any application during proceedings must also pay a fee of up to £255 per application.

As stated above, decisions of the Comptroller can be appealed to the High Court. This application must be accompanied by an application fee of £240. When appealing a Patents Court or IPEC decision to the Court of Appeal, a fee of £1,199 is payable for all appeals, including where permission to appeal has been granted or is not required (i.e. for IPEC appeals). Where Patents Court appeals require permission to appeal, an additional £528 is payable.

If a Court of Appeal decision is further appealed to the Supreme Court, further fees are payable, including for: an application for permission to appeal (£1,000); filing notice of an intention to proceed with an appeal (£800); filing notice of an appeal (£1,600); and filing a statement of relevant facts and issues and appendix of essential documents (£4,820).

However, the majority of the cost of the dispute incurred by parties will be incurred by way of legal fees. These will vary significantly depending on the complexity of the dispute; the time taken to resolve the dispute; whether the first instance judgment is appealed; and the law firm and barristers engaged.

United States Small Flag United States

Costs in patent litigation include attorneys’ fees and various types of disbursements. Disbursements may include expert witness fees, travel and lodging costs, document processing costs, court reporter and videographer costs, translation or interpretation costs, jury or witness consultants, and others. On appeal, the disbursements are much more limited. Costs for appeals mainly involve document printing and binding, travel, and lodging.

Vietnam Small Flag Vietnam

The legal fees for a court case per level of adjudication (either first-instance or appeal) are likely to range from USD 8,000 to USD 25,000, depending on how long the main proceedings last. The above costs cover all the proceedings during the civil actions, including the preliminary injunction proceedings.

Updated: November 14, 2019