Patent Lit Example: Fixed Fee by Phase with Activity Collar Material Deviation Clause
Assumptions are detailed in the Pricing section of this RFP.
Note that the total proposed fixed fee price accepted by Company will not change on this Matter unless there is a material deviation in the above assumptions, and Company agrees to any adjustment.
Material Deviation shall be defined as a 30% increase or decrease in the number/quantity of activities described in the assumptions listed above, If there is a material deviation then we would use the proposed phase/activity-level prices to determine how much to increase or decrease the total price by.
For example, if the proposed total price was $200,000 and the price per deposition proposed was $10,000 and the number of depositions actually required was 10 instead of 5 (>30% deviation), then the total price would be increased by $50,000 to a new total of $250,000.
- Phase 1: Investigation - Fixed Fee
- Initial Analysis/Assessment, including evaluation of the recommended venue and reasoning. Include, for example, discussion regarding whether the judge conducts Markman hearings, requires in-person meet and confers for motions, requires letter briefs, etc.. Also include the likely case schedule and any other intelligence you may have about the judge and recommended forum.
- Responsive Pleading
- Fact Investigation/Development
- Motion to Transfer (if applicable)
- Invalidity Contentions
- Data Preservation tasks/ Joint Def. Agreement
- Other
- Phase 2: Fact Discovery - Fixed Fee
- 2.1 Fee per Deposition in case of deviation - Fixed Fee
- Protective Order
- Document Production
- Offensive ROGs
- Defensive ROGs
- Offensive RFAs
- Defensive RFAs
- Inventor Depositions [4-6 assumed]
- Depositions of Plaintiff [3 assumed]
- Depositions of Company [2 assumed]
- Third Party RFPs
- Third Party Depositions
- Discovery Motions
- Other Discovery
- Phase 3: Claim Construction - Fixed Fee
- Identify Terms and Prepare Constructions
- Prepare Briefing (incl. indefiniteness)
- Claim Construction Discovery
- Technology Tutorial
- Claim Construction Hearing
- Other
- Phase 4: Expert Discovery & Reports - Fixed Fee
- 4.1 Fee per Expert Deposition in case of deviation- Fixed Fee
- Invalidity Report
- Infringement Report
- Damages Report
- Expert Depositions of Plaintiff [2-3 assumed quantity]
- Expert Depositions of Company [2-3 assumed quantity]
- Other
- Phase 5: MSJ & Daubert - Fixed Fee
- Invalidity MSJ
- Non-Infringement MSJ
- Daubert
- Other
- Phase 6: Other Pre-Trial - Fixed Fee
- Mediation / Settlement
- Case Assessment
- Deep Dive Presentation with Company
- Phase 7: Trial Prep and Trial (assume 1 week) - Fixed Fee
- 7.1 Fee per Trial Day - Fixed Fee
- Witness prep
- Motions in Limine
- Other Motions
- Deposition Designations
- Exhibit Lists
- Other Trial Prep & Support
- Trial
- Post-Trial Motions & Submissions
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