November 02, 2016 Articles

The Rise of Rule 12 Motions

Defendants can realistically hope to end a case early through motions to dismiss and motions for judgment on the pleadings

By Ben Hodges

The numbers are familiar to every patent litigator at this point in time: The average cost of a patent litigation case through discovery is around $1 million (depending on the amount in controversy). Taking a patent litigation case all the way through trial doubles that amount (also depending on the amount in controversy). To most readers of this article, these numbers will not come as a shock, but they help to explain how certain unscrupulous plaintiffs can file patent infringement suits with little to no merit and still hope to make money; it is often significantly cheaper for a defendant to settle than to prove the merits of its defense.

There have been many tools implemented in the past decade in an attempt to provide protection for accused infringers and to mitigate the costs involved in defending lawsuits that, to some defendants, seem little more than legal extortion. These efforts include state laws (such as Washington Revised Code Annotated section 19.350.900 (West)) aimed at providing remedies for meritless or reckless patent assertion or cases that encourage fee shifting (Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 188 L. Ed. 2d 816 (2014)), but these efforts focus on providing relief once a suit is shown to be meritless or in bad faith. Even getting to that point, however, can involve a massive expenditure of capital against an opponent that may not have the money to satisfy any judgment to recoup the expenditure.

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