To patent or not to patent: That is the question

Prospective clients routinely ask whether getting a patent makes sense given that she would not likely be able to afford the cost of the lawsuit necessary to enforce the patent and stop an infringer. The truth is that patent infringement litigation is expensive; attorneys’ fees alone usually exceed $1 million in a case taken through trial. Moreover, even if the patent holder prevails, there is no guarantee he will be able to recover attorney fees. In fact, under the American Rule, attorney fees awards are the exception rather than the rule. The good news is that the award of attorney fees in patent cases have become more common in recent years; nevertheless, it is still somewhat foolish for a litigant to assume she will be able to recover fees. So why bother filing for a patent on an innovation?

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