Step 8: Trial

Trial: Mainly by Jury

  • More than 95% of patent cases are tried by jury.

  • The parties may waive the right to a jury trial and have the court try the case, but such waivers are rare.

  • In jury trials, must propose jury instructions.

  • Presentation of the evidence is normally framed by opening and closing arguments.

  • Live testimony is generally elicited from witnesses, both fact and expert, and each party can offer documents or physical items into evidence, generally through the testimony of the witnesses.

Jury Trial: Part 1

  • The jury must have at least 6 and no more than 12 jurors. A typical patent jury trial begins with the jury selection process (voirdire).

  • Each party presents opening statements.

  • The patentee presents its case-in-chief (presenting all the evidence on the matters on which it bears the burden of proof, such as infringement).

    • Trial includes live witness testimony (both fact and expert).
    • A party’s witness is first questioned by the party offering the witness’s testimony (direct examination). Some courts require that direct testimony to be entered in the form of an affidavit. Then the witness is cross-examined by the opposing party on the testimony offered (cross-examination). The offering party can ”re-direct” a witness’s testimony with additional questions.
    • Throughout the examination, the parties can object to the questions and evidence. Unless excluded by the judge, the testimony becomes evidence in the case.
    • On occasion, a judge can appoint an expert to provide advice to the court.

Jury Trial: Part 2

  • The defendant then presents its case (rebutting the patentee’s case and presenting all the evidence on the matters on which it bears the burden of proof, such as invalidity).

  • Next, the patentee rebuts the defendant’s infringer’s case.

  • Finally, the parties summarize the case in closing statements.

  • The jury will then deliberate a reach a verdict.

Trial Duration

  • Courts have the inherent power to set time limits for a trial.

  • Many courts will impose a time limit by allocating a specific number of hours per side, e.g., 20 hours, which would result in a trial lasting about two weeks.

  • Most patent cases can be tried within two weeks.

  • Juries generally take only 4 to 8 hours to deliberate and reach a verdict.

  • The verdict is usually unanimous, but it can be by majority.

Step 9: Post Trial

  • When a trial has concluded and a verdict has been rendered, the judgment is formalized by the court.

  • Then, either party may file a post trial motion.

  • Some of the most common type of post trial motions include:

    • New trial: When the trial judge is convinced that the judgment would result in a miscarriage of justice, or if new evidence is discovered after the trial concluded and it could not have been discovered with due diligence before or during the trial.
    • Motion for judgment notwithstanding the verdict: When the jury erred and the court agrees the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable jurors could not arrive at a contrary verdict.
    • Motion to amend or nullify the judgment: If the final judgment is obtained by fraud or ill practices.

Step 10: Appeal

  • CAFC has exclusive jurisdiction over appeals of patent litigation cases.

    • Generally, appeals can only be taken from ”final” judgments, which often occur only when all issues including infringement, validity, enforceability and damages have been determined by the district court.
    • However, there are some instances where an ”interlocutory” appeal can be taken from a non-final judgment, for example, when a preliminary injunction is granted or denied.
  • Appeals of CAFC decisions are heard by the Supreme Court.

Time and Cost

  • The duration of patent lawsuits in district courts varies widely, depending on the court. However, in many district courts, it is not uncommon for proceedings to last for two or more years from inception to disposition.

  • Some courts, such as the Eastern District of Virginia, have attempted to expedite the process by instituting a ”rocket docket”, which aims to resolve patent disputes within a year.

  • Appeals are generally decided within 12-18 months.


  • In large patent suits where the amount at stake is more than US$25 million, costs through to a district court judgment can run on average in the range of US$6 million or more.

  • It is not uncommon for patent infringement litigation to cost between $2 million and $10 million.

  • Appeals generally cost between $150,000 to $500,000.