Editors:
Jeffrey Johnson, Editor in Chief
Ali Dhanani, Associate Editor
Melissa Schwaller, Associate Editor
Meng-Tien Hsieh, Associate Editor
Houda Jarrah, Verdicts and Injunctions Editor
Kenneth Liu, Editor
Karthika Perumal
Orson Bell
Student Editors
Prof. Paul M. Janicke, Faculty Coordinator
[last updated January 3, 2012]
Third Quarter rulings posted; Permanent Injunction decisions updated; Patent Jury Verdicts updated
All of our major tracking stats have now been updated. Of possible interest is the strong showing for patentees during the third quarter on the inequitable conduct issue, with 21 rejection rulings for that defense versus only 1 ruling upholding it. Perhaps the defense is losing steam, with the constraints imposed by recent Federal Circuit decisions.
Commentary on the New Patent Act
An expanded PowerPoint on various aspects of the AIA patent reform law is now posted.
Injunction Rulings and Jury Verdicts Updated
Our listing of post-eBay permanent injunction grants and denials is updated to August 11, 2011. Jury verdicts are also updated through August 11, 2011. The percentage of patentee wins at the jury level (i.e., for those who survived summary judgment and were able to proceed to trial) remains at 75%. The median verdict for patentees who won at trial is now about $7M, slightly higher than in the past.
Some 5-year Comparisons
Patstats now has collected 10+ years of rulings on patent litigation issues. It seemed of interest to compare the first five years (2000-2004) with the succeeding five years (2005-2009) to see if any significant trends or shifts were apparent. We have now posted a table on the stats page, showing the results for several important issues. We express the numbers in terms of patentee win rates.
For obviousness, as might be expected, the trend is somewhat downward in recent years, from a 61% win rate down to 53%. This roughly coincides with the increase of critiques of the PTO's operations in the mid-2000's.
Written description results are something of a surprise. Patentees have been winning on that issue more often than they did in the earlier years (67% vs. 48%).
Most of the other listed win rates are substantially unchanged, with patentees taking their largest losses on the infringement front. The figures for exhaustion are interesting in that the issue was seldom adjudicated in the early 2000s, but much more often in the later period.
Patent Suit Filings in Calendar 2010
In past years we have counted the number of "patent cases" filed in the district courts by simply summing all the newly filed cases where the jurisdictional basis was said to be the patent law. For 2010 that number is 3,605, much higher than the 2,744 cases recorded in 2009. However, the 2010 figure is swollen by 752 false marking cases. If those are backed out, the number of new patent filings was 2,853, up 4% from the prior year.
In addition to the far more numerous patent infringement and declaratory judgment suits, patent case filing figures for 2010 and for prior years include a small number -- believed to be fewer than 50 -- of other kinds of patent disputes, such as inventorship and patent-related malpractice, which also arise under the patent laws and hence are coded "830" by the district clerks. In addition, transfers are treated by the clerks as new cases, leading to a certain amount of double counting. These small subcategories do not distort the year-to-year comparisons very much. However, the large inflow of false marking cases has distorted the figures, and this led us to back out those cases. To do so we relied on Justin Gray's blog "Gray on Claims," at grayonclaims.com/false-marking-case-information/
The Eastern District of Texas was especially hard-hit with false marking cases in 2010, with 362 such cases being filed there. This reduces the number of "real" patent cases filed in the district from 648 seen on Pacer, to 286, the highest in the country. By contrast, Central California saw only 9 false marking cases filed, making the real patent count there 227. Northern California had, according to Pacer, 206 patent filings, of which 22 were false marking cases (net 184). Delaware saw 259 patent filings, of which only 6 were false marking cases, making Delaware the second-busiest patent district in 2010.
Regular patstats service:
The University of Houston Law Center's Institute for Intellectual Property
and Information Law is pleased to provide quarterly research information on
recent patent law decisions in United States courts. Our reports began with
the first quarter of 2000. We portray data on all reported patent decisions,
including those affirmances decided by the Federal Circuit under Rule 36 with
no published opinion. We track the cases on an issue-specific basis, e.g.,
public use bar under 35 U.S.C. § 102(b) [issue 03], or infringement under
the doctrine of equivalents [issue 24], or inequitable conduct [issue 17].
We hope to provide scholars, commentators, and practitioners with valuable
data on trends in the enforcement side of patent law, to complement published
data from other sources regarding the filing of patent applications and the
issuance of patents. Beginning with the first quarter of 2005, we have posted
a caselist identifying the cases from which our statistics are drawn. Each
case on the list has an index number. Next to each entry in patstats there
is a bracketed string of numerals identifying the cases that make up the entry.
For example, if there were 7 patentee victories on the public use issue, the
entry might read: P: 7 [33, 38, 66(3), 74(2)]. This signifies that case numbers
33, 38, 66, and 74 were the cases in which these seven patentee victories
on public use occurred. Recall that patstats counts successes patent-by-patent.
Case 66 involved public use holdings on three different patents and case 74
involved public use holdings on two patents.
We report only on the current highest level decision in a given case, and
we discard earlier rulings. For example, if a district court held a patent
valid, but the court of appeals later held it invalid, we will include the
appellate ruling in our current data and delete the district court ruling
if it was included in any prior reported data. We will likewise go back and
delete a statistic when a court of appeals opinion is withdrawn in order to
rehear the case en banc. A new statistic will appear when the en banc decision
comes down. Thus, we are always reporting the highest level of decision thus
far reached in a given case, and past reports are subject to later adjustment.
We do not attempt to gather data on unreported district
court cases, but we do include non-precedential decisions and Rule 36 summary
affirmances by the Federal Circuit. For the Rule 36 cases we determine the
affirmed points by inspecting the appellate briefs. We include reported cases
decided by the International Trade Commission and the Court of Federal Claims.
However, we do not report on decisions of the PTO's Board of Patent Appeals
& Interferences or on court appeals therefrom.
We report each issue that has been decided. Where multiple patents are litigated
and decided, we report each as a separate item. We do likewise where different
claims of a patent are adjudicated in different ways, e.g., claim 1 invalid
for on-sale bar, and claim 19 invalid for obviousness. Hence a single reported
case could well generate four or five issue determination, sometimes. It is
therefore not valid to conclude from these data that patentees won or lost
a certain number of "cases," or that the accused infringers did
so.
| * Mr. Johnson is Research Adjunct Professor of Law at the University of Houston Law Center and a partner at the Houston office of DLA Piper. Mr. Dhanani is an attorney at the Houston office of Baker Botts. Ms. Schwaller is an attorney at the Houston office of Novak Druce + Quigg . Ms. Jarrah is an LLM student in intellectual property at the University of Houston Law Center. Professor Janicke is the HIPLA Professor of Law at the University of Houston Law Center. For comments or inquiries, please address ipil@uh.edu. |
TABLE OF ISSUES REPORTED
Validity rulings --
102(a) -- prior public knowledge or publication
102(b) -- time-bar publication or patent
102(b) -- public use
102(b) -- on sale
102(c) -- abandonment
102(d) -- prior foreign patenting
102(e) -- earlier-filed US patent of another
102(f) -- derived subject matter; wrong inventorship
102(g) -- prior invention by another
103 -- obviousness
112, inadequate disclosure -- description
112, inadequate disclosure -- enablement
112, inadequate disclosure -- best mode
112, claim indefinite
Double patenting
Improper broadening
Enforceability rulings --
Inequitable conduct
Misuse
Procedural rulings --
Laches
Equitable estoppel
Limitations
Failure to mark
Infringement issues --
Literal direct infringement
Doctrine of equivalents direct infringement
Inducing infringement
Contributory infringement
Selling or importing product of patented process
Shipping abroad (§ 271(f) or (g))
License defense
Exhaustion defense
Exemption under § 271(e)
Exemption for other experimentation
Damages calculations --
Lost profits
Reasonable royalty
Split bases
Special Factors rulings --
Willfulness
Enhanced damages due to willfulness
Attorney fees to patentee
Attorney fees to accused infringer
Preliminary injunction
Please refer any questions to the IPIL Program Coordinator at the following e-mail address: ipil@uh.edu