A Defendant/Applicant's Perspective on Key Events, Attorney Hour Estimates & Case Progression
Before diving into the procedural details, it is crucial to understand that the vast majority (often estimated at over 95%) of TTAB cases do not proceed through a full trial to a final decision. Instead, they are resolved through settlement between the parties.
This guide breaks down the standard TTAB process, detailing the potential range of attorney hours for key events in simple versus complex cases. Understanding these figures will help you develop a more informed case strategy and budget with your attorney.
This initial phase involves filing a formal Answer to the Notice of Opposition, participating in a mandatory discovery/settlement conference, and preparing initial disclosures. It is typically completed within 2.5 to 3.5 months of the case's commencement. Approximately 85-95% of all instituted cases go through this phase.
Reviewing the opposer's claims, discussing the case merits, investigating facts, and drafting and filing a formal Answer. Typically due 40 days after the TTAB's institution notice.
Attorney Hours Range: 7 - 15 hours
A straightforward Answer (clear facts, simple denials) is at the lower end. A complex Answer (requiring detailed research, affirmative defenses, or considering counterclaims) is at the higher end.
A mandatory conference between attorneys, held ~30 days after the Answer is filed, to discuss the case, settlement possibilities, and a discovery plan.
Attorney Hours Range: 2.5 - 5 hours
Cooperative conferences with direct topics take less time. More time is needed for detailed ESI discussions or contentious issues.
Parties exchange lists of key witnesses and documents ~30 days after the discovery conference.
Attorney Hours Range: 2 - 8 hours
Simple disclosures with limited materials are quick. Complex cases with many potential witnesses and documents take longer.
A motion to dismiss or a motion for a more definite statement might arise. This is also a key settlement window, as many cases are resolved before or just after the Answer is filed, avoiding further costs.
This is the core evidence-gathering stage, with a standard discovery period of 180 days. It is often the most time-intensive part of the case. About 40-70% of cases engage in substantial written discovery. This phase typically spans from 2.5 to 8.5 months after commencement.
Providing sworn, written answers to the opposer's questions (usually limited to 75).
Attorney Hours Range: 4.5 - 20 hours
Responding to a few, simple interrogatories takes less time (4.5-7.5 hrs). Complex or numerous questions requiring extensive fact-checking take longer.
Collecting, reviewing, and producing documents requested by the opposer (usually limited to 75 categories).
Attorney Hours Range: 4.5 - 30+ hours
Responding to narrow requests with a small volume of documents is quicker (4.5-10 hrs). Cases with extensive ESI or complex privilege reviews take much longer.
Admitting, denying, or explaining the reasoning for each of the opposer's factual statements (usually limited to 75).
Attorney Hours Range: 3 - 15 hours
Preparing and defending your own witnesses, or preparing for and taking the deposition of opposing witnesses. Occurs in ~10-30% of cases.
Attorney Hours Range (per deposition): 10 - 30 hours
If there are no material facts in dispute and the law favors your side, this motion can be used to try and end the case before trial. Filed in ~10-20% of cases that reach this stage.
Attorney Hours Range: 15 - 75+ hours
Extremely time-consuming with a high bar for success.
Common motions include motions to compel or motions for a protective order. Discovery is a primary catalyst for settlement, as both sides gain a clearer view of the case's strengths and weaknesses.
This phase occurs after discovery and any summary judgment motions are resolved, but before the "trial" (testimony) periods begin. The core task is to finalize trial strategy, prepare all written testimony and exhibits, and make mandatory pre-trial disclosures. This typically occurs 9.5 to 12 months into the case. Very few cases (perhaps 2-5%) proceed this far.
At least 15 days before their testimony period, each party must disclose to the other side and file with the TTAB a list of witnesses, a summary of their testimony, and a list of exhibits they intend to rely on. The entire case file is organized into a final evidence package.
Attorney Hours Range (for defendant's entire preparation in this phase): 10 - 40 hours
The range depends on the volume of evidence, number of witnesses, and complexity of the trial strategy.
Motions to exclude evidence or to amend pleadings (though late) can occur. There is a final window for settlement before significant trial preparation begins, but sunk costs are usually high at this point.
A TTAB "trial" is conducted primarily through asynchronous, written submissions of evidence and testimony, culminating in written arguments (trial briefs). The entire process, from the first testimony period to the final brief, takes about 6-9 months. Fewer than 2-3% of all cases proceed through this entire phase.
The defendant's main tasks include: reviewing the opposer's main evidence; preparing and submitting all supporting evidence during its 30-day testimony period; reviewing the opposer's rebuttal evidence; preparing and filing the defendant's main brief (usually under 55 pages); reviewing the opposer's reply brief; and, if requested and granted, preparing for and attending an oral hearing.
Attorney Hours Range (for all of defendant's activities in this phase): 70 - 250+ hours
Cases with straightforward evidence and legal points without an oral hearing are at the lower end. Cases with voluminous evidence, many legal issues, and a full oral hearing are at the highest end.
Motions are rare here, mostly concerning the admissibility of evidence. Settlement is still possible but unlikely this close to a final decision.
The following activities can occur at any stage of a TTAB proceeding and can significantly impact attorney hours and the case's direction.
Examples: Motion to Dismiss, Compel Discovery, for a Protective Order, to Extend, to Strike, to Amend Pleading, to Exclude Evidence, etc. Simple, uncontested, or routine procedural motions generally take less time.
Drafting or responding to each simple/uncontested motion typically takes 2-4 hours.
For motions requiring substantive legal argument, evidence, or that are heavily contested, the time increases significantly:
Includes multiple rounds of negotiation with opposing counsel, as well as drafting, reviewing, and revising settlement agreements.
Attorney Hours Range (for the entire settlement process):
Attorney time for a motion to suspend for settlement talks: ~0.5 hours for a consented motion; ~1.5 hours for a unilateral request.
This chart visualizes how attorney hours can accumulate if a case is not settled early. The hours for each phase build upon the previous ones, highlighting the potential cost of delay. The chart shows the cumulative range of attorney hours, from simple to complex cases, at the conclusion of each major phase.