Understanding the realities of modern patent litigation

Texas Law Review

Volumn 92, Issue 7, 2014, Pages 1769-1801

  Allison, John R ^a   Lemley, Mark A ^b,c   Schwartz, David L ^d  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

^b STANFORD LAW SCHOOL   (United States)

^c Durie Tangri LLP ^*  (United States)

^d CHICAGO KENT COLLEGE OF LAW   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84904052284     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (124)

1. John R. Allison & Mark A. Lemley, Empirical Evidence on the Validity of Litigated Patents, 26 AIPLA Q.J. 185, 188-93 (1998) (discussing the existing literature and "lack of empirical evidence on the function and impact of the patent system" at the time).
2. E.g., J. Jonas Anderson & Peter S. Menell, Informal Deference: A Historical, Empirical, and Normative Analysis of Patent Claim Construction, 108 Nw. U. L. Rev. 1, 6 (2014) (analyzing claim construction from the Federal Circuit between 2000 and 2011)
3. Gretchen Ann Bender, Uncertainty and Unpredictability in Patent Litigation: The Time is Ripe for a Consistent Claim Construction Methodology, 8 J. Intell. Prop. L. 175, 175 (2001) (noting that the Federal Circuit frequently changes the trial court's claim construction)
4. Christian A. Chu, Empirical Analysis of the Federal Circuit's Claim Construction Trends, 16 Berkeley Tech. L.J. 1075, 1078-79 (2001) (examining the effects of the Federal Circuit's de novo review of claim construction)
5. Shawn P. Miller, "Fuzzy" Software Patent Boundaries and High Claim Construction Reversal Rates, 17 Stan. Tech. L. Rev. (forthcoming 2014) (manuscript at 2), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2139146 (determining that the Federal Circuit is more likely to find error in district court constructions of software patents)
6. Kimberly A. Moore, Are District Court Judges Equipped to Resolve Patent Cases?, 15 Harv. J.L. & Tech. 1, 2 (2001) [hereinafter Moore, Equipped] (presenting study results "that show[] that district court judges improperly construe patent claim terms in 33% of the cases appealed to the Federal Circuit")
7. Kimberly A. Moore, Markman Eight Years Later: Is Claim Construction More Predictable?, 9 Lewis & Clark L. Rev. 231, 245-46 (2005) [hereinafter Moore, Markman] (investigating the Federal Circuit's response to Markman and finding a higher reversal rate than in her 2001 study)
8. David L. Schwartz, Courting Specialization: An Empirical Study of Claim Construction Comparing Patent Litigation Before Federal District Courts and the International Trade Commission, 50 Wm. & Mary L. Rev. 1699, 1702-04 (2009) [hereinafter Schwartz, Courting Specialization] (examining the performance of the U.S. International Trade Commission in patent construction cases)
9. David L. Schwartz, Practice Makes Perfect? An Empirical Study of Claim Construction Reversal Rates in Patent Cases, 107 Mich. L. Rev. 223, 224-25 (2008) [hereinafter Schwartz, Practice Makes Perfect?] (questioning whether U.S. district court judges improve their patent claim construction decisions with experience)
10. David L. Schwartz, Pre-Markman Reversal Rates, 43 Loy. L.A. L. Rev. 1073, 1075-76 (2010) [hereinafter Schwartz, Pre-Markman Reversal Rates] (providing data from almost two decades of Federal Circuit opinions to investigate if changes in procedure changed reversal rates).
11. E.g., Christopher A. Cotropia, Nonobviousness and the Federal Circuit: An Empirical Analysis of Recent Case Law, 82 Notre Dame L. Rev. 911, 914 (2007) (studying cases decided under the nonobviousness requirement)
12. Lee Petherbridge & R. Polk Wagner, The Federal Circuit and Patentability: An Empirical Assessment of the Law of Obviousness, 85 Texas L. Rev. 2051, 2054-56 (2007) (arguing on the basis of data that the Federal Circuit's doctrine of obviousness "appears relatively stable and increasingly flexible")
13. Jason Rantanen, The Federal Circuit's New Obviousness Jurisprudence: An Empirical Study, 16 Stan. Tech. L. Rev. 709, 710-11 (2013) (assessing two prior predictions about obviousness).
14. E.g., Christian E. Mammen, Controlling the "Plague": Reforming the Doctrine of Inequitable Conduct, 24 Berkeley Tech. L.J. 1329, 1331-33 (2009) (reporting data on inequitable conduct allegations and advocating reforms to the doctrine of inequitable conduct)
15. Lee Petherbridge, Jason Rantanen & Ali Mojibi, The Federal Circuit and Inequitable Conduct: An Empirical Assessment, 84 S. Cal. L. Rev. 1293, 1318-19 (2011) (observing that the Federal Circuit's doctrine of inequitable conduct is stricter than the doctrine as applied by lower courts and other judicial panels)
16. Robert D. Swanson, Comment, The Exergen and Therasense Effects, 66 Stan. L. Rev. 695, 717-18 (2014) (finding that inequitable conduct allegations have dropped dramatically in recent years).
17. E.g., John R. Allison & Mark A. Lemley, The (Unnoticed) Demise of the Doctrine of Equivalents, 59 Stan. L. Rev. 955, 957-58 (2007) (studying the doctrine of equivalents over three time periods and finding that it rarely matters anymore)
18. Lee Petherbridge, On the Decline of the Doctrine of Equivalents, 31 Cardozo L. Rev. 1371, 1379 (2010) (confirming the Allison-Lemley findings)
19. David L. Schwartz, Explaining the Demise of the Doctrine of Equivalents, 26 Berkeley Tech. L.J. 1157, 1159 (2011) (arguing that the decline in the doctrine of equivalents resulted from "doctrinal reallocation" and "doctrinal displacement").
20. Christian A. Chu, Empirical Analysis of the Federal Circuit's Claim Construction Trends, 16 Berkeley Tech. L.J. 1075, 1078-79 (2001) (examining the effects of the Federal Circuit's de novo review of claim construction)
21. Lee Petherbridge, On the Decline of the Doctrine of Equivalents, 31 Cardozo L. Rev. 1371, 1379 (2010) (confirming the Allison-Lemley findings)
22. Lee Petherbridge & R. Polk Wagner, The Federal Circuit and Patentability: An Empirical Assessment of the Law of Obviousness, 85 Texas L. Rev. 2051, 2054-56 (2007) (arguing on the basis of data that the Federal Circuit's doctrine of obviousness "appears relatively stable and increasingly flexible")
23. Kimberly A. Moore, Are District Court Judges Equipped to Resolve Patent Cases?, 15 Harv. J.L. & Tech. 1, 2 (2001) [hereinafter Moore, Equipped] (presenting study results "that show[] that district court judges improperly construe patent claim terms in 33% of the cases appealed to the Federal Circuit")
24. Several studies have used comprehensive data from U.S. district courts rather than depending on published opinions from Westlaw or Lexis. John R. Allison, Mark A. Lemley & Joshua Walker, Extreme Value or Trolls on Top? The Characteristics of the Most-Litigated Patents, 158 U. Pa. L. Rev. 1, 3 & n.3 (2009) [hereinafter Allison et al., Most-Litigated Patents] (using litigation data from Lex Machina)
25. John R. Allison, Emerson H. Tiller, Samantha Zyontz & Tristan Bligh, Patent Litigation and the Internet, 2012 Stan. Tech. L. Rev., art. 3, ¶¶ 10-11 (2012) [hereinafter Allison et al., Patent Litigation] (using litigation data from Derwent LitAlert database and Lex Machina)
26. John R. Allison, Mark A. Lemley & Joshua Walker, Patent Quality and Settlement Among Repeat Patent Litigants, 99 Geo. L.J. 677, 682 & n.21 (2011) [hereinafter Allison et al., Patent Quality] (using litigation data from Lex Machina)
27. John R. Allison, Mark A. Lemley, Kimberly A. Moore & R. Derek Trunkey, Valuable Patents, 92 Geo. L.J. 435, 443-45 (2004) [hereinafter Allison et al., Valuable Patents] (using litigation data from local court records of individual U.S. district courts).
28. Paul M. Janicke & LiLan Ren, Who Wins Patent Infringement Cases?, 34 AIPLA Q.J. 1, 10 (2006)
29. For a discussion of PACER coding and its shortcomings, see generally Matthew Sag, Empirical Studies of Copyright Litigation: Nature of Suit Coding (Loyola Univ. Chi. Sch. of Law, Pub. Law & Legal Theory, Research Paper No. 2013-017), available at http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=2330256.
30. Jay P. Kesan & Gwendolyn G. Ball, How Are Patent Cases Resolved? An Empirical Examination of the Adjudication and Settlement of Patent Disputes, 84 Wash. U. L. Rev. 237, 261 (2006) (examining the online docket reports available through the PACER system).
31. Kimberly A. Moore, Judges, Juries, and Patent Cases--An Empirical Peek Inside the Black Box, 99 Mich. L. Rev. 365, 381 (2000) (eliminating some cases misclassified as patent trials from the data set).
32. Jay P. Kesan & Gwendolyn G. Ball, How Are Patent Cases Resolved? An Empirical Examination of the Adjudication and Settlement of Patent Disputes, 84 Wash. U. L. Rev. 237, 261 (2006) (examining the online docket reports available through the PACER system).
33. Lex Machina, http://www.lexmachina.com.
34. Features, Lex Machina, https://lexmachina.com/features/ ("[V]iew all patent case outcomes for a specific judge or district, displayed in easy-to-read charts and graphs supported by interactive case lists.").
35. How It Works, Lex Machina, https://lexmachina.com/features/how-it-works/ ("Lex Machina cleans, codes, and tags all data....").
36. Michael Risch, Why Do We Have Trade Secrets?, 11 Marq. Intell. Prop. L. Rev. 1, 50 n.235 (2007)
37. We conducted the coding in the late summer and fall of 2013. By February 2014, it appears that only 2%-3% of 2008 and 2009 cases were still open. See Dennis Crouch, Pendency of Patent Infringement Litigation, Patently-O (Feb. 17, 2014), http://patentlyo.com/patent/2014/ 02/pendency-infringement-litigation.html
38. Jay P. Kesan & Gwendolyn G. Ball, How Are Patent Cases Resolved? An Empirical Examination of the Adjudication and Settlement of Patent Disputes, 84 Wash. U. L. Rev. 237, 261 (2006) (examining the online docket reports available through the PACER system).
39. Occasionally, the court ruled differently on different claims of a patent. For instance, claim 1 may be infringed and not invalid, but claim 2 was not infringed and anticipated. In these cases, we would create a new record for each group of claims that had a different substantive outcome.
40. Because the number of citations received by a patent in later patents (that treat the earlier patent as prior art) is a moving target, the raw numbers of citations received must be adjusted to account for the varying ages of the patents in our data set. We used a commonly employed technique suggested by Bronwyn Hall and her colleagues. Bronwyn H. Hall, Adam B. Jaffe & Manuel Trajtenberg, The NBER Patent-Citations Data File: Lessons, Insights, and Methodological Tools, in Patents, Citations, & Innovations 403, 434-41 (Adam B. Jaffe & Manuel Trajtenberg eds., 2002). The method of adjustment to account for the different ages of patents involves placing each patent in the data set into a cohort of other patents in the data set that were issued during the same year. Id. at 437. Thus, each cohort is one year, although cohorts of more than one year could be used if necessary even though that would decrease precision somewhat. The number of forward citations received by each patent is divided by the average number of forward citations received by other patents in the same cohort. Id. This gives us the adjusted number of forward citations for that patent in the data set. The process is repeated for every other patent in the same cohort and then repeated for each patent in the other year cohorts. To obtain the adjusted number of forward citations for an entire data set, we then averaged the quantity of adjusted number of forward citations received by all patents in the set.
41. Allison also hand-coded the technology and industry categories for each patent. We report those results in a companion paper.
42. Of course, if the Federal Circuit reversed a ruling relating to a patent on appeal, we updated the final-resolution coding to reflect the appellate decision.
43. Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011) (codified in scattered sections of 35 U.S.C.).
44. Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276 (Fed. Cir. 2011) (en banc).
45. Bilski v. Kappos, 130 S. Ct. 3218 (2010).
46. Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289 (2012).
47. Ass'n for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (2013).
48. Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1315 (Fed. Cir. 2011) (prohibiting the use of the 25% rule of thumb for calculating reasonable royalties)
49. ResQNet. com, Inc. v. Lansa, Inc., 594 F.3d 860, 873 (Fed. Cir. 2010) (vacating the district court's damages award because the reasonable royalty determination relied on speculative evidence).
50. Mark A. Lemley, Rational Ignorance at the Patent Office, 95 Nw. U. L. Rev. 1495, 1501 (2001) ("The overwhelming majority of [patent] lawsuits settle or are abandoned before trial. ").
51. Such claims may be common. See Mark A. Lemley & A. Douglas Melamed, Missing the Forest for the Trolls, 113 Colum. L. Rev. 2117, 2163 (2013) (noting that patent trolls pursue a large number of cases, many of which a practicing entity would probably not bring, but that these cases are more likely to settle quickly).
52. Scott A. Moss, Illuminating Secrecy: A New Economic Analysis of Confidential Settlements, 105 Mich. L. Rev. 867, 869 (2007) ("Public settlements are the exception, common in only a few types of cases.... ").
53. We cut off our data collection on June 1, 2013.
54. Mark A. Lemley, Where to File Your Patent Case, 38 AIPLA Q.J. 401, 405 & tbl.2 (2010) (finding both districts to be among the most favored for patent lawsuits). Note, however, that because we count only cases with merits decisions, rather than all cases filed, a district's share of cases in our data set may not match their share of filed cases because cases in some districts are more likely to settle than others.
55. Summary judgment of validity differed from the other summary judgment motions we classified. A motion for summary judgment of validity often encompassed one ground for invalidity. For instance, the patent holder may move for summary judgment of no anticipation. Even if the motion was granted, it would not preclude an accused infringer from contesting the validity on a different basis, such as lack of enablement. Thus, even a successful patent holder on a motion for summary judgment of validity did not necessarily prevail on all invalidity defenses.
56. We conducted the coding in the late summer and fall of 2013. By February 2014, it appears that only 2%-3% of 2008 and 2009 cases were still open. See Dennis Crouch, Pendency of Patent Infringement Litigation, Patently-O (Feb. 17, 2014), http://patentlyo.com/patent/2014/ 02/pendency-infringement-litigation.html
57. Jay P. Kesan & Gwendolyn G. Ball, How Are Patent Cases Resolved? An Empirical Examination of the Adjudication and Settlement of Patent Disputes, 84 Wash. U. L. Rev. 237, 261 (2006) (examining the online docket reports available through the PACER system).
58. Saurabh Vishnubhakat, Reconceiving the Patent Rocket Docket: An Empirical Study of Infringement Litigation 1985-2010, 11 John Marshall Rev. Intell. Prop. L. 58, 61 (2011).
59. The median case in the Central District of California went to trial in 955 days. Lex Machina, https://law.lexmachina.com/court/cacd. By comparison, the median case in the Western District of Wisconsin went to trial in 588 days. Lex Machina, https://law.lexmachina.com/court/wiwd.
60. John R. Allison & Mark A. Lemley, Empirical Evidence on the Validity of Litigated Patents, 26 AIPLA Q.J. 185, 188-93 (1998) (discussing the existing literature and "lack of empirical evidence on the function and impact of the patent system" at the time).
61. Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1295-97 (2012) (holding that a method of administering thiopurine drugs in the treatment of autoimmune diseases was excluded from patentability because the method essentially "set forth laws of nature" and did not do enough to add to natural processes so as to warrant patentability)
62. Bilski v. Kappos, 130 S. Ct. 3218, 3231 (2010) (holding that a hedging strategy was based on too abstract a concept to be a patentable process)
63. CLS Bank Int'l v. Alice Corp. Pty., 717 F.3d 1269, 1274 (Fed. Cir. 2013) (en banc), cert. granted, 134 S. Ct. 734 (2013) (holding that the asserted method, computerreadable medium, and system claims of the defendant's patents were invalid for failure to recite patent-eligible subject matter).
64. John R. Allison & Mark A. Lemley, Empirical Evidence on the Validity of Litigated Patents, 26 AIPLA Q.J. 185, 188-93 (1998) (discussing the existing literature and "lack of empirical evidence on the function and impact of the patent system" at the time).
65. Over one-third of the merits decisions in our study concerned software patents (339 of 949). We discuss technology-and industry-specific results in a subsequent paper.
66. Function Media, L.L.C. v. Google Inc., 708 F.3d 1310, 1318 (Fed. Cir. 2013) (noting that "[w]hen dealing with a 'special purpose computer-implemented means-plus-function limitation,'" disclosure of the algorithm for performing the function is required); ePlus, Inc. v. Lawson Software, Inc., 700 F.3d 509, 518 (Fed. Cir. 2012) (concluding that the specification at issue did "not disclose sufficient structure for the 'means for processing' limitation")
67. Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1313 (Fed. Cir. 2012) (distinguishing between cases where a software patent specification "discloses no algorithm" and those where an algorithm is disclosed but still may be "inadequate")
68. Ergo Licensing, LLC v. CareFusion 303, Inc., 673 F.3d 1361, 1365 (Fed. Cir. 2012) (explaining that "[i]t is only in the rare circumstances where any general-purpose computer without any special programing can perform the function that an algorithm need not be disclosed, " and requiring that such disclosure demonstrate the "step-by-step process" for arriving at a given result)
69. Typhoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376, 1384-86 (Fed. Cir. 2011) (holding that while means-plus-function software claims required disclosure of corresponding structure performing that function in the specification, that structure did not need to be described in the form of software code); In re Aoyama, 656 F.3d 1293, 1294, 1297-98 (Fed. Cir. 2011) (holding a means-plus-function software patent claim invalid as indefinite for failure to disclose the corresponding algorithm performing that function)
70. Aristocrat Techs. Austl. Pty Ltd. v. Int'l Game Tech., 521 F.3d 1328, 1337-38 (Fed. Cir. 2008) (requiring algorithm disclosure and indicating that the standard is whether "a person of ordinary skill in the art would not recognize the patent as disclosing any algorithm at all")
71. WMS Gaming Inc. v. Int'l Game Tech., 184 F.3d 1339, 1349 (Fed. Cir. 1999) ("[T]he disclosed structure is not the general purpose computer, but rather the special purpose computer programmed to perform the disclosed algorithm. "). For further discussion on functional claiming
72. Teva Pharms. USA, Inc. v. Sandoz, Inc., 723 F.3d 1363, 1368, 1373 (Fed. Cir. 2013), cert. granted, 134 S. Ct. 1761 (2014) (addressing questions of definiteness and claim construction and noting that both are questions of law).
73. Peter S. Menell, Matthew D. Powers & Steven C. Carlson, Patent Claim Construction: A Modern Synthesis and Structured Framework, 25 Berkeley Tech. L.J. 711, 772 (2010) ("When a claim cannot be construed, it is indefinite, and therefore invalid. Some authority suggests that all indefiniteness issues boil down to an issue of claim construction. ").
74. John R. Allison & Mark A. Lemley, Empirical Evidence on the Validity of Litigated Patents, 26 AIPLA Q.J. 185, 188-93 (1998) (discussing the existing literature and "lack of empirical evidence on the function and impact of the patent system" at the time).
75. Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996).
76. Jay P. Kesan & Gwendolyn G. Ball, Judicial Experience and the Efficiency and Accuracy of Patent Adjudication: An Empirical Analysis of the Case for a Specialized Patent Trial Court, 24 Harv. J.L. & Tech. 393, 415 (2011). "If there are no remaining issues of material fact... a case can be resolved on summary judgment or quickly settled as the possible outcomes become more predictable. "
77. Notably, the fact that indefiniteness is decided during claim construction means that we may actually undercount the number of indefiniteness motions. Not all indefiniteness motions or rulings are styled "summary judgment;" some rulings on indefiniteness may evade our view because they are buried inside an order that purports to be only about claim construction. While we have done our best to identify all such cases, we cannot guarantee that we have them all. So, if anything, our numbers understate the growth in the importance of indefiniteness.
78. We will discuss industry-and technology-specific results in a separate, forthcoming paper.
79. Teva Pharms. USA, Inc. v. Sandoz, Inc., 723 F.3d 1363, 1368 (Fed. Cir. 2013), cert. granted, 134 S. Ct. 1761 (2014) (quoting Biosig Instruments, Inc. v. Nautilus, Inc., 715 F.3d 891, 898 (Fed. Cir. 2013), cert. granted, 134 S. Ct. 896 (2014).
80. Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 896 (2014).
81. Unless otherwise noted in the paper, we treated split rulings as separate observations. See supra note 25. As a robustness check, we also calculated the summary judgment success rate on invalidity by reweighting these split rulings to normalize all observations on a patent in a case to one. Using this metric, the invalidity rate was still 31%.
82. The numbers of individual challenges do not add to the total because some motions were brought on multiple grounds. The numbers of successful challenges do not add to the total because a few successful motions were brought on grounds not listed here, like utility or inventorship.
83. As a robustness check, we also calculated the definitive-merits-ruling win rate by reweighting the split patents. Using this alternative metric, patentees still only won 26% of the rulings.
84. Paul M. Janicke & LiLan Ren, Who Wins Patent Infringement Cases?, 34 AIPLA Q.J. 1, 10 (2006)
85. As a robustness check, we also calculated the summary judgment win rate on noninfringement by reweighting the split patents. Accused infringers won 53% of their summary judgment rulings using that metric.
86. Mark A. Lemley, The Fractioning of Patent Law, in Intellectual Property and the Common Law 504, 509 (Shyamkrishna Balganesh ed., 2013) (describing validity doctrines as having a "patentee-must-win-everything characteristic").
87. Joe S. Cecil et al., A Quarter-Century of Summary Judgment Practice in Six Federal District Courts, 4 J. Empirical Legal Stud. 861, 886 (2007) ("Defendants' motions for summary judgment are far more common than plaintiffs' motions. ").
88. A patent owner may sometimes stipulate that, if the court construes a disputed claim term in a particular way, there will be no infringement. If the court construes the claim term unfavorably to the patent owner, the result is a judgment of noninfringement in the same manner as though the decision had been in response to a motion for summary judgment of noninfringement.
89. Mark A. Lemley, Rational Ignorance at the Patent Office, 95 Nw. U. L. Rev. 1495, 1501 (2001) ("The overwhelming majority of [patent] lawsuits settle or are abandoned before trial. ").
90. Morton Denlow, Summary Judgment: Boon or Burden?, 37 Judges' J., Summer 1998, at 26, 27 ("[A] defendant who brings and loses a summary judgment motion lives to fight another day. The losing plaintiff, however, loses not only the battle, but also the war. ").
91. Kimberly A. Moore, Forum Shopping in Patent Cases: Does Geographic Choice Affect Innovation?, 79 N.C. L. Rev. 889, 920-23 (2001) (comparing forum shopping by infringers in declaratory judgment actions with that of patentees in infringement cases).
92. John R. Allison & Mark A. Lemley, Empirical Evidence on the Validity of Litigated Patents, 26 AIPLA Q.J. 185, 188-93 (1998) (discussing the existing literature and "lack of empirical evidence on the function and impact of the patent system" at the time).
93. Jay P. Kesan & Gwendolyn G. Ball, How Are Patent Cases Resolved? An Empirical Examination of the Adjudication and Settlement of Patent Disputes, 84 Wash. U. L. Rev. 237, 261 (2006) (examining the online docket reports available through the PACER system).
94. Joseph P. Romano et al., Control of the False Discovery Rate Under Dependence Using the Bootstrap and Subsampling, 17 Test 417 (2008) (discussing the merits of the bootstrap method to control for a false discovery rate while testing s null hypotheses simultaneously).
95. The omitted districts in this analysis are all districts other than the top thirteen. These other districts were combined into one category for measurement.
96. It is also notable that the Central District of California had fewer merits decisions than most other busy districts, but we have not tested for a relationship between the two.
97. Mark A. Lemley, Su Li & Jennifer M. Urban, Does Familiarity Breed Contempt Among Judges Deciding Patent Cases?, 66 Stan. L. Rev. (forthcoming 2014) (manuscript at 23) (determining that Delaware courts are more likely to rule for patentees)
98. Mark A. Lemley, Jamie Kendall & Clint Martin, Rush to Judgment? Trial Length and Outcomes in Patent Cases, 41 AIPLA Q.J. 169, 185 (2013) (finding no significant differences by district in trial results).
99. Mark A. Lemley, Su Li & Jennifer M. Urban, Does Familiarity Breed Contempt Among Judges Deciding Patent Cases?, 66 Stan. L. Rev. (forthcoming 2014) (manuscript at 23) (determining that Delaware courts are more likely to rule for patentees)
100. Mark A. Lemley, Jamie Kendall & Clint Martin, Rush to Judgment? Trial Length and Outcomes in Patent Cases, 41 AIPLA Q.J. 169, 185 (2013) (finding no significant differences by district in trial results).
101. For the other outcome-Invalidity at any stage based on Section 102 prior art-the differences in rates among districts was significant at 0.017, very close to the <0.01 of the other nine outcomes.
102. Mark A. Lemley, Jamie Kendall & Clint Martin, Rush to Judgment? Trial Length and Outcomes in Patent Cases, 41 AIPLA Q.J. 169, 185 (2013) (finding no significant differences by district in trial results).
103. Gideon Parchomovsky & R. Polk Wagner, Patent Portfolios, 154 U. Pa. L. Rev. 1, 27 (2005) (proposing that the real value of patents lies in their aggregation into portfolios).
104. John M. Golden, Principles for Patent Remedies, 88 Texas L. Rev. 505, 514 (2010) (noting that injunctions are a "standard remedy for patent infringement, " and even when such injunctions "are unavailable, a patent owner may recover money damages").
105. This Article utilizes each patent in a lawsuit as the unit of observation. Future work includes transforming the unit of observation to each lawsuit and performing similar empirical analysis. Analyzing the data using the lawsuit as the unit of observation may shed more light on litigation involving multiple patents.
106. Kimberly A. Moore, Xenophobia in American Courts, 97 Nw. U. L. Rev. 1497, 1504 (2003) (finding that juries in patent trials are biased against foreign parties);
107. Kimberly A. Moore, Xenophobia in American Courts, 97 Nw. U. L. Rev. 1497, 1504 (2003) (finding that juries in patent trials are biased against foreign parties);
108. In the unusual case in which there was an equal split between the number of U.S. and non-U.S. inventors, the domicile of the assignee was used as a tiebreaker. There were no cases in which there were an equal number of U.S. and foreign inventors without there also being an assignee to break the tie.
109. Kimberly A. Moore, Are District Court Judges Equipped to Resolve Patent Cases?, 15 Harv. J.L. & Tech. 1, 2 (2001) [hereinafter Moore, Equipped] (presenting study results "that show[] that district court judges improperly construe patent claim terms in 33% of the cases appealed to the Federal Circuit")
110. For general arguments that going first is an advantage in litigation, see, for example, Shari Seidman Diamond et al., Juror Reactions to Attorneys at Trial, 87 J. Crim. L. & Criminology 17, 27 (1996).
111. Kimberly A. Moore, Are District Court Judges Equipped to Resolve Patent Cases?, 15 Harv. J.L. & Tech. 1, 2 (2001) [hereinafter Moore, Equipped] (presenting study results "that show[] that district court judges improperly construe patent claim terms in 33% of the cases appealed to the Federal Circuit")
112. Kimberly A. Moore, Jury Demands: Who's Asking?, 17 Berkeley Tech. L.J. 847, 859-61 (2002) ("Accused infringers generally bring declaratory judgment actions when they believe they have a strong case on the merits. ").
113. Kristin Johnson Doyle, Patent Demand Letters: Avoiding Declaratory Judgment Jurisdiction-Part 2 of 2, Intell. Prop. Today (Feb. 2010), http://www.iptoday.com/ issues/2010/02/patent-demand-letters-avoiding-declaratory-judgment-jurisdiction-part-2-2.asp ("[U]se of smart strategies when dealing with alleged infringers may serve to shield the patent owner from declaratory judgment jurisdiction.").
114. David S. Abrams, Did TRIPS Spur Innovation? An Analysis of Patent Duration and Incentives to Innovate, 157 U. Pa. L. Rev. 1613, 1616 n.9 (2009) (citing numerous articles assessing patent value by citation count).
115. This contrasts with Michael J. Mazzeo, Jonathan Hillel & Samantha Zyontz, Explaining the "Unpredictable": An Empirical Analysis of U.S. Patent Infringement Awards, 35 Int'l Rev. L. & Econ. 58, 67 (2013), which finds that damages (as opposed to liability rulings) are predictable based on some simple variables.
116. John R. Allison, Mark A. Lemley & David L. Schwartz, PowerPoint: Differences in Patent Litigation Outcomes by Technology and Industry (2014) (on file with authors).
117. This particular set of regressions also included six technology areas-mechanical, electronics, chemistry, biotechnology, software, and optics, but the pseudo R2's were at the same very low levels for regressions run with only the eight patent characteristics, and run in several other ways.
118. John R. Allison & Mark A. Lemley, Empirical Evidence on the Validity of Litigated Patents, 26 AIPLA Q.J. 185, 188-93 (1998) (discussing the existing literature and "lack of empirical evidence on the function and impact of the patent system" at the time).
119. Sara Jeruss, Robin Feldman & Joshua Walker, The America Invents Act 500: Effects of Patent Monetization Entities on US Litigation, 11 Duke L. & Tech. Rev. 357, 358-62 (2012) (reporting an increase in patent-monotization-entity suits in the last decade).
120. Cotropia et al. bypothesize that large increases occurred prior to 2010).
121. John R. Allison & Mark A. Lemley, Empirical Evidence on the Validity of Litigated Patents, 26 AIPLA Q.J. 185, 188-93 (1998) (discussing the existing literature and "lack of empirical evidence on the function and impact of the patent system" at the time).
122. Paul M. Janicke & LiLan Ren, Who Wins Patent Infringement Cases?, 34 AIPLA Q.J. 1, 10 (2006)
123. The continuity may be even greater than that. Matthew Henry and John Turner study patent litigation going back to 2009, and find with two exceptions the patentee's overall odds of winning hover between 27% and 29%. Matthew D. Henry & John L. Turner, Across Five Eras: Patent Enforcement in the United States 1929-2006, at 4 (June 2013) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2274383.
124. John R. Allison & Mark A. Lemley, Empirical Evidence on the Validity of Litigated Patents, 26 AIPLA Q.J. 185, 188-93 (1998) (discussing the existing literature and "lack of empirical evidence on the function and impact of the patent system" at the time).