Saturday, January 28, 2012

Are Frequently Litigated Patents Different? Yes!

I want to highlight a few points from an article I read tonight: Allison, Lemley, and Walker's, Extreme Value or Trolls on Top? The Characteristics of the Most-Litigated Patents (2009)The authors found most-litigated patents (8 times or more) had quite different characteristics than once-litigated patents: 
  • 70% of the most-litigated patents are software patents 
  • 72% of the most-litigated patents are in the computer industry
  • The most-litigated patents are disproportionately owned by non-practicing entities (i.e., patent trolls)
  • The most-litigated patents include more claims (39 claims v. 24 claims in terms of mean)
  • They cite more prior art, backward citations, in terms of means and rounding to nearest integer: 
    • 61 to 23 US patents 
    • 9 to 4 Foreign patents 
    • 53 to 6 Non-patent references (printed publications)
  • Later issued patents more often cite the most-litigated patents, forward citations
  • The most-litigated patents are part of a patent family with more continuations and divisionals 
It is a 50-page paper based on Stanford IP Litigation Clearinghouse data that compares the 106 most-litigated US patents to 106 randomly selected once-litigated patents between 2000 -2007. 

The abstract states the paper might be useful to guide patent reform, but I think it also indicates what type of patent is likely to be fit for multiple rounds of litigation and what a patent owner should consider if it is heading to litigation. Further, if you plan to enforce or license your patents, you can control nearly all of these characteristics. Even forward citations can be increased by citing to one's previous related patents and published applications. It is not simply a numbers game, as additional relevant references will strengthen validity of a patent and diversity of claims of different scope give more options on what one can assert in litigation. If you are interested in patent strategy, defense or offense, this paper is worth reading. 

Copyright © 2012 Robert Moll. All rights reserved.