IP litigation, from a plaintiff’s perspective, must be viewed as a business decision based upon identifiable, coherent goals and nothing else. From a defendant’s perspective, the cost of litigation should, in most instances, be viewed as an expensive due diligence to determine the value of a plaintiff’s claim relative to the impact that claim will have on the defendant’s business. Winning at any cost or litigation conducted without regarding to the business goal top be accomplished--generally represents poor business judgment. IP litigation must be conducted as all business activities--with informed appraisal of the costs and benefits.

IP litigators traditionally fight on all fronts. Every possible maneuver is undertaken, regardless of cost. Many of these maneuvers may not make business sense, nor fit into the business rationale for engaging in litigation in the first place. The chances of winning, in certain instances, may be low or non-existent. And yet the litigators fight on, racking up fees for their firms at the expense of the business and bottom lines of their clients.

Decisions as to litigation should be solely business decisions, made with legal advice as well as an eye on economic, marketing and accounting considerations. The overriding strategy, as in all business decisions, should be to minimize costs and maximize the end result.

A sound business approach to litigation does not reward lawyers exorbitant fees for useless motions, endless discovery, associate education and luxurious offices. But a sound business approach to litigation does allow or even induce the other side to pay their lawyers excessive amounts. The more lop-sided the litigation costs against the opposing party, the greater the leverage for a favorable settlement. The costs of the litigation to the other side will eventually outweigh the benefits to such an extent that the executives in charge will be forced to terminate the litigation.

One strategy to control costs for those companies without in-house intellectual property counsel is litigation management: an outsider, preferably with IP legal training, oversees and advises and may even manage and direct the litigation. From a macromanagement perspective, the outsider can provide recommendations as to the few legal issues which are likely to be dispositive as to final outcome so that the litigation strategy can be tailored to emphasize those issues and to limit or ignore smokescreen issues in order to minimize costs. On a micromanagement side, the outside manager can provide the litigant with unbiased insight into the objective chances of success of motions, the usefulness of proposed lines of questioning in interrogatories and depositions, the minimum number of experts and their testimony, and so forth.

An important function of a litigation manager is to provide an estimation of the chances of success and, therefore, of the desirability of and leverage in settlement negotiations. An outside adviser is less likely to be biased by the prospects of enormous litigation fees inasmuch as such a proposed litigation manager does not partake of the huge fees normally incurred in IP litigation.