Anyone budgeting for a patent case needs current numbers, and the most widely used source is the Report of the Economic Survey published every two years by the American Intellectual Property Law Association (AIPLA), the main US bar association for IP lawyers. Its latest edition, the 2025 report, was released in February 2026.
The usual headline is that patent litigation costs keep rising. The 2025 data tells a more specific story. The hourly rate for IP work rose by about 23% since the previous survey. The median cost of taking a high-stakes case through trial and appeal did not rise with it, and at the top tier it came in slightly lower. This article sets out what a patent case costs in 2026, where in the case the money goes, and what a parallel challenge at the Patent Trial and Appeal Board adds.
Key Takeaways
- A high-stakes patent case costs a median of roughly $3.5 million through trial and appeal, and about $4 million when the patent owner is a non-practicing entity.
- The average IP billing rate rose from $447 to $550 an hour between the 2023 and 2025 AIPLA surveys, an increase of about 23%.
- Discovery is one of the largest cost drivers, and most patent cases settle before trial, so much of the budget is spent before anyone reaches a courtroom.
- An inter partes review costs a median of about $355,000 through the PTAB hearing, on top of more than $50,000 in USPTO fees for a petition covering up to 20 claims.
- Technical work done before filing, such as prior art searching and product testing, is the part of the cost a patent owner has most control over.
What Does a Patent Case Cost in 2026?
AIPLA reports median costs by the amount at risk, meaning the damages exposure in the dispute. For the highest tier, the 2025 survey puts district court costs at upwards of $3.5 million when significant value is at risk, and $4 million when the patent holder is a non-practicing entity. A non-practicing entity, often called an NPE, is a patent owner that licenses or enforces patents rather than making products under them.
The table below gives the median by tier, split between a case that ends after discovery and claim construction and one that runs through trial and appeal.
For comparison, the 2023 survey put the median at about $3.625 million for cases with more than $25 million at risk. On these figures, the top-tier median was roughly flat to slightly lower in 2025, even as billing rates climbed.
Why Hourly Rates Are the Real Increase
The clearest rise in the data is the price of an hour of IP work. AIPLA’s 2023 survey reported an average billing rate of $447 an hour for IP work across firms. The 2025 survey reports $550 an hour, which the USPTO now uses as its standard attorney rate. That is an increase of $103, or about 23%. AIPLA attributes part of the increase to inflation over the period.
Rates rising while the top-tier case median held steady means something else moved. The survey does not say what. Plausible explanations include fewer billed hours per case, more cases resolving at earlier stages, or a change in the mix of cases reported, and the data does not distinguish between them. What it does show is that a budget built on 2023 rates will be short for any stage billed by the hour.
Patent Litigation Costs by Stage
Costs do not build evenly across a case. They start small with the pre-suit assessment and climb once the case reaches discovery, claim construction, and expert work.
Discovery is the stage where the budget moves fastest. AIPLA has noted that discovery alone can consume a third or more of the parties’ litigation resources. Claim construction, where the court decides what the patent’s claims mean, usually at a Markman hearing, adds more. So does expert work, because patent disputes turn on technical questions that need specialists to explain.
The Federal Judicial Center, the research and education agency of the US federal courts, describes patent cases in its Patent Case Management Judicial Guide as involving complex technology, difficult discovery, heavy use of experts, and claim construction proceedings that interact with summary judgment and expert reports. The same guide found that more than 95% of patent cases historically resolved before trial: roughly 30% before any court action, about half during early case management, and around 15% during or after pretrial proceedings. Those figures come from the guide’s 2016 edition, so they describe the long-run pattern rather than 2026 settlement rates.
The practical consequence is that a case does not need to reach trial to become expensive. A large share of the budget is committed during discovery and claim construction, which is exactly where most cases end.
Patent Trial and Appeal Board Proceedings as a Cost Factor
Many defendants respond to a lawsuit by asking the Patent Trial and Appeal Board (PTAB), the USPTO’s internal tribunal, to cancel the patent through inter partes review (IPR). An IPR is usually cheaper than fighting validity in court, but running one alongside a district court case adds a second proceeding to pay for.
For a petition covering up to 20 claims, the USPTO charges a $23,750 request fee when the petition is filed and a $28,125 post-institution fee if the Board agrees to hear the case, with further fees for additional claims. The request fee is spent even if the Board declines to institute.
Professional fees are the larger share. AIPLA’s 2025 survey puts the median cost of an IPR through the hearing at about $355,000 for electrical, computer, and mechanical technologies.
IPR is also closely tied to litigation. The USPTO’s FY2025 statistics show 1,361 IPR petitions out of 1,433 AIA trial petitions, and roughly 80% of challenged patents were also involved in district court litigation. Once a trial is instituted, the Board generally issues a final written decision within one year, extendable by up to six months for good cause. Neither AIPLA nor the USPTO publishes a standard figure for the combined cost of running both proceedings at once, because it varies too much by case.
What Patent Litigation Costs Mean for Enforcement Decisions
Enforcement becomes hard to justify when the value at stake is close to the cost of pursuing it. There is no fixed damages threshold where a case stops making sense, because the answer depends on patent strength, likely recovery, litigation cost, and whether an IPR is likely.
The AIPLA tiers give a benchmark. A case with less than $1 million at risk can still cost several hundred thousand dollars to litigate, while a larger dispute can carry a proportionally larger budget. For portfolio owners, the comparison usually has to run across several patents, products, and defendants at once. For how the recovery side of that comparison is estimated, see our guide to patent infringement damages calculation, and for how funders apply the same economics, see Lumenci’s work with litigation finance teams.
Where Early Technical Work Changes the Numbers
Much of the technical work that becomes expensive inside discovery can begin before filing, when it costs less and the patent owner controls its scope. A patent owner can investigate how an accused product works, test the patent against the prior art, and check whether the evidence supports each claim element. The USPTO itself recommends a preliminary prior art search to find patents and publications relevant to an invention.
Once a case is filed, the same questions move into formal discovery, where they are answered through document requests, source code production, and depositions, all billed at litigation rates. Work done beforehand also narrows what discovery has to cover, because the weak claims and weak targets have already been dropped.
How Lumenci Moves Technical Work Ahead of Discovery
Every stage in the cost tables above that involves technical evidence can start earlier than discovery. That is where Lumenci’s work is concentrated, drawing on more than 100,000 patents analysed for over 200 clients.
- Validity tested before filing: a prior art search shows how exposed the asserted patent is to an IPR before the $23,750 petition fee and a $355,000 median defence are in play.
- Infringement evidence built pre-suit: product testing and reverse engineering establish how the accused product works, so discovery requests can target what is still unknown.
- Claim charts that survive claim construction: claim charts tie each claim element to evidence early, reducing the rework that drives up Markman-stage costs.
- Efficient review once discovery opens: source code review under the protective order focuses on the functions already identified as relevant.
- Experts involved from the start: expert witnesses who help shape the technical record are cheaper than experts brought in late to defend a record someone else built.
Talk to Lumenci about scoping the technical work on a case before its litigation budget is committed.
Conclusion
Patent litigation costs in 2026 are concentrated where they have always been: discovery, claim construction, expert work, and any parallel PTAB proceeding. What changed between surveys is the price of the hours spent in those stages, which rose about 23%, while the median high-stakes case held close to $3.5 million.
That makes the stages billed before litigation begins the most useful place to act. Testing validity, establishing how an accused product works, and building claim charts early all reduce what discovery has to prove. iLumOS, Lumenci’s expert-powered AI platform, helps portfolio owners find the patents worth that early investment before any case is filed.
Table of Contents
Frequently Asked Questions
How much does patent litigation cost in 2026?
According to AIPLA’s 2025 survey, a high-stakes patent case costs a median of about $3.5 million through trial and appeal, and about $4 million when the patent owner is a non-practicing entity. Smaller cases cost less, but can still reach several hundred thousand dollars.
Are patent litigation costs rising?
Hourly rates are. The average IP billing rate rose from $447 to $550 an hour between AIPLA’s 2023 and 2025 surveys. The median cost of a high-stakes case through appeal was roughly flat, at about $3.5 million compared with $3.625 million in 2023.
What is the most expensive stage of patent litigation?
Discovery is one of the largest cost drivers, and AIPLA has noted it can consume a third or more of the parties’ litigation resources. Claim construction and expert work add substantially on top.
How much does an inter partes review cost?
USPTO fees for a petition covering up to 20 claims total $51,875: a $23,750 request fee and a $28,125 post-institution fee. AIPLA’s 2025 survey puts the median total cost through the PTAB hearing at about $355,000 for electrical, computer, and mechanical patents.
What is the AIPLA Report of the Economic Survey?
It is a survey of IP practitioners published every two years by the American Intellectual Property Law Association, covering billing rates, practice costs, and median litigation costs by case type and amount at risk. The 2025 edition was released in February 2026.
How many patent cases settle before trial?
The Federal Judicial Center’s Patent Case Management Judicial Guide found that more than 95% of patent cases historically resolved before trial. That figure comes from the guide’s 2016 edition and reflects a long-run pattern.
