Friday, May 30, 2014

Allison et al. Understanding the Realities of Modern Patent Litigation

If you are interested in U.S. patent litigation, I recommend John Allison, Mark Lemley, and David Schwartz's article Understanding the Realities of Modern Patent Litigation which will be published in the Texas Law Review.

Here's the abstract of the article:

"Sixteen years ago, two of us published the first detailed empirical look at patent litigation. In this Article, we update and expand the earlier study with a new hand-coded data set. We evaluate all substantive decisions rendered by any court in every patent case filed in 2008 and 2009 — decisions made between 2009 and 2013. We consider not just patent validity but also infringement and unenforceability. Moreover, we relate the outcomes of those cases to a host of variables, including variables related to the parties, the patents, and the courts in which those cases were litigated. The result is a comprehensive picture of the outcomes of modern patent litigation, one that confirms conventional wisdom in some respects but upends it in others. In particular, we find a surprising amount of continuity in the basic outcomes of patent lawsuits over the past twenty years, despite rather dramatic changes in who brought patent suits during that time."

The authors noted the "overall picture painted by our data is complex. In many ways, patent litigation is rather different than it was when we conducted our original study. The top districts for patent litigation—the Eastern District of Texas and the District of Delaware—were not nearly as important twenty years ago. The Markman hearing did not exist in our original study. Patent assertion entities (referred to by some as “patent trolls”) were a minor feature of patent litigation in the 1990s. And the most successful validity challenges today—patentable subject matter and indefiniteness—were virtually unknown twenty years ago."

The authors stated that "ten years ago, Janicke and Ren found that patentees won only 25% of decided cases; we find that number virtually unchanged today. Forty-six percent of patents whose validity was decided in the 1990s were held invalid; today the invalidation rate is 43%. Much has changed about patent law, but the overall dynamics of patent litigation—in which patentees win at trial but not on summary judgment, and in which patentees win each individual issue but lose overall—remain remarkably similar to the patent litigation we studied twenty years ago."

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