Practice Notes | U.S. Federal Litigation: Questions Cross-Border Sellers Ask Most (Part II)

In day-to-day consultations, cross-border sellers often lack a clear picture of what U.S. federal intellectual property litigation involves. The following questions come up often enough to address together.

Frequently Asked Questions

Q: How long does a U.S. intellectual property case usually take?

A: If a case runs the full course, the answer is measured in years — typically 18 to 36 months. The full sequence generally involves: filing and initial proceedings (complaint, filing fee, issuance of the summons, service of process, and the defendant's response deadline, ordinarily 21 days); the defendant's initial response (an answer with affirmative defenses and counterclaims, or a Rule 12(b) motion raising jurisdiction, service, failure to state a claim, and the like — and if a motion to dismiss is denied, an answer thereafter); case management (the Rule 26(f) conference, a Rule 16 scheduling conference, the court's scheduling order fixing deadlines, and initial disclosures under Rule 26(a)(1)); in patent cases, the procedures under the patent local rules (infringement contentions, invalidity contentions, exchange of disputed claim terms, a joint claim construction statement, a Markman hearing, and the court's claim construction order); discovery (interrogatories, requests for production, requests for admission, depositions of witnesses, experts, and Rule 30(b)(6) corporate representatives, third-party subpoenas, ESI/e-discovery, protective orders — particularly where attorneys'-eyes-only information is involved — and discovery motions such as motions to compel); expert proceedings (opening and rebuttal reports, expert depositions, and Daubert motions); summary judgment (motion, opposition, reply, and the court's ruling, which may narrow the issues for trial); pretrial preparation (the pretrial order with disputed and undisputed facts, exhibit and witness lists, motions in limine, proposed jury instructions, and the final pretrial conference); trial (voir dire or a bench trial, opening statements, the plaintiff's case-in-chief, the defendant's case-in-chief, rebuttal, closing arguments, and deliberation and verdict); and post-trial proceedings (JMOL and new trial motions, damages if bifurcated, and fee applications under 35 U.S.C. § 285). Discovery alone typically runs six to twelve months. It bears noting that a great many cases never complete this sequence; many end during discovery or at summary judgment, and only a limited share reach trial.

Q: What does a U.S. intellectual property case cost?

A: According to the American Intellectual Property Law Association's 2023 economic survey, median costs are roughly: for cases with less than $1 million at risk, about $300,000 through discovery and about $600,000 through trial; for cases with $1 million to $10 million at risk, about $600,000 through discovery and about $1 million through trial. These are industry medians. Cross-border e-commerce matters are typically smaller and actual costs may be lower, but U.S. federal litigation remains substantially more expensive than domestic Chinese litigation. These figures also explain, from another angle, why resolving a Schedule A matter inexpensively at the TRO and PI stage matters so much to a seller: resolving before discovery generally costs far less than proceeding through the full process. Actual cost also depends heavily on how hard the parties fight; not every case reaches the most expensive stages. And a seller who brings a DJ action as plaintiff can, to a degree, set its own pace and manage cost accordingly.

Q: Why do so many cases never reach judgment?

A: Sellers encountering U.S. litigation for the first time often assume the objective is a judgment. Usually it is not. A great many federal cases end before judgment, for two broad reasons. First, litigation is expensive; once a clear trend emerges at some stage, parties reassess the commercial value of continuing. Second, U.S. law constrains unfounded litigation: pressing a case without a factual or legal basis carries corresponding legal risk. That is why U.S. litigation features so much motion practice — a ruling on one key motion, or a single round of disclosure, can make the likely outcome quite clear, and once it does, the risk to the disadvantaged party of persisting rises sharply. Default judgment warrants separate mention. Where a defendant fails to appear or answer within the prescribed period, the court may enter default judgment on the plaintiff's application, finding for the plaintiff outright. Once entered, a default judgment imposes liability and is enforceable within the United States; for cross-border sellers it may also be used to freeze or levy funds held by third-party platforms. Responding promptly on receipt of process is therefore the first step in avoiding the worst outcome.

Q: What is discovery, and why is the window before it starts so important?

A: Discovery is among the most significant stages of U.S. litigation and the most expensive. During it, each side may require the other to produce substantial business information — internal correspondence, sales data, product development records, design files, and financial materials — and it may also involve deposition testimony and expert reports. Discovery typically runs for months and is the stage at which costs accumulate quickly. For a cross-border seller, discovery means a large volume of internal information may have to be produced. In practice the parties usually negotiate a protective order limiting the use of sensitive business information, and highly sensitive commercial data may be designated attorneys' eyes only, available to counsel alone rather than to the opposing party. Even so, for cross-border sellers the outcome at the TRO/PI stage largely determines the trajectory of the case. In Schedule A matters, a seller should work to resolve the central issues within that window rather than entering a lengthy discovery period carrying the burden of delisted products and frozen accounts. Concretely: if the TRO/PI can be prevented or dissolved, and listings and store operations return to normal, the plaintiff's incentive to apply pressure through aggressive discovery drops substantially, and the likelihood of a fast resolution rises. Conversely, a seller who enters discovery still delisted and frozen will face document collection, witness scheduling, and other practical obstacles under distinctly unfavorable conditions, with materially higher cost and duration.

Q: Do U.S. federal courts review a complaint before docketing it? How long does filing take?

A: In the Chinese system a court reviews the filing materials before deciding whether to docket a case. U.S. federal courts have no such step. Provided the materials are complete, the only real constraint on filing speed is counsel's upload bandwidth. Once counsel files the complaint through the electronic system and pays the filing fee, a case number is generated automatically — typically within minutes. Whether the case has legal merit is not assessed at filing; it is addressed later through motion practice, such as a motion to dismiss. That mechanism cuts both ways. For sellers facing mass enforcement, it explains why the barrier to suit is so low and why an enforcing party can readily name large numbers of sellers as defendants. For sellers who need to sue affirmatively — to bring a declaratory judgment action quickly, or to stay a platform APEX proceeding — the speed of filing means a case number can be obtained almost immediately, buying a time window for what follows.

U.S. federal procedure is complex and circumstances vary from case to case.

This article addresses general legal questions only and does not constitute legal advice on any specific matter. Outcomes depend on the specific facts, evidence, applicable law, and the court's discretion.