It is not clear to what "publicly available data" the European Communities refer in asserting that enforcement actions in Federal courts "typically" require several years to reach a final judgment and that costs, including attorneys' fees, "often" reach US$1 million or more. By not providing citations to or copies of the "publicly available data" referred to, the European Communities preclude the United States Government from considering the source and the material and responding.
With regard to information on average costs and duration of legal actions, it should be noted that, under the United States judicial system, US district courts have original jurisdiction over enforcement actions regarding copyrights, patents, plant variety protection, trademarks and integrated circuit layout designs. Jurisdiction over enforcement actions involving geographical indications and trade secrets is shared between the Federal district courts and the state courts depending on a variety of factors. The Administrative Office of the United States Courts (the Administrative Office), which compiles statistics on activities of Federal courts, provides statistical information only on the number of cases filed annually involving patents, copyrights and trademarks (see table 1 below) and the number of cases terminated in a given year involving those same topics (see table 2 below), indicating at what stage of the process the case was terminated. The figures in table 1 below indicate, however, that right holders make frequent use of temporary restraining orders, preliminary injunctions, ex parte seizures and other provisional remedies in cases enforcing intellectual property rights, so that only a small percentage of cases filed proceeds to final judgment. Tracking individual intellectual property cases from filing to termination in order to determine the average time required to reach final judgment would be very costly. In addition, the duration of cases is affected significantly by the parties themselves and there would be no means for determining what periods were attributable to the courts and what periods were the fault of the parties.
The Administrative Office does not keep a record of the cost of litigation. Parties do not provide information on attorneys' fees, cost of experts, etc. to the Administrative Office, and would not likely do so if asked, because such information is generally regarded as confidential, except when costs are being claimed. Fees charged by attorneys are not set by government nor does the government place any arbitrary limits on the number of practising attorneys. Fees vary from location to location, firm to firm, attorney to attorney, and task to task and are often subject to negotiation. Under these circumstances, even estimates of the costs of litigation would be unreliable.
For all of these reasons, it is not possible to provide data on the average duration or cost of proceedings concerned with the enforcement of intellectual property rights in the United States. The data regarding termination of cases for the year ending 30 June 1997, however, would indicate that a majority of cases are resolved during the discovery phase (before pre-trial), since discovery provides each side with information allowing it to evaluate its position and the likelihood of success on the merits of the case. Many others are resolved before action begins as a result of negotiations.
Table 1
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Table 2
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