Jeffrey Johnson, Editor in Chief
Melissa Schwaller, Associate Editor
Meng-Tien Hsieh, Associate Editor
Kenneth Liu, Associate Editor
Karthika Perumal, Verdicts and Injunctions Editor
Prof. Paul M. Janicke, Faculty Coordinator
[last updated April 18, 2013]
Fourth Quarter 2012 Results Posted
Patentees lost more obviousness rulings than they won. Inducement continues to be difficult to prove, in light of recent case law. The heaviest toll on patentees continues to be on the infringement question, which they consistently lose by more than a 2:1 margin.
Patent Cases Filed in 2012
5,778 patent cases were filed in calendar 2012. [Source: Lexis CourtLink] Eastern Texas was highest, with 1266 cases, 21.9% of the national total. Second was Delaware, with 997 filings, 17.3% of the total. Central California was a rather distant third, with 517 (8.9%). The AIA's constraints on joinder were responsible for some of the rise, but the total volume of patent litigation was also larger than in recent years, with 12,627 named defendants. [Source: PACER] 2012 was significant in that it reflects the complete absence of qui tam mismarking cases, which had tended to distort some litigation statistics.
Verdicts and Injunction Rulings Updated
Jury verdicts in patent cases are current through November 30, 2012, and will soon be updated. This series, which began in January 2005, is now nearing completion of its eighth year of reporting. While the median verdict for winning patentees (75% of the verdicts rendered) remains in the vicinity of $7M, a number of high-dollar verdicts have appeared in recent months. A reminder: We report only the jury verdict, not the final district court judgment in the case, which could be higher due to enhancement and interest, or lower due to JMOL on the merits or to acceptance of a remittitur.
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. Mr. Hsieh is an attorney at the Houston law firm Boulware & Valoir. Mr. Liu is a partner in the Houston law firm Eubanks & Liu. Ms. Jarrah is an LLM graduate in intellectual property law 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 firstname.lastname@example.org.|
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
Enforceability rulings --
Procedural rulings --
Failure to mark
Infringement issues --
Literal direct infringement
Doctrine of equivalents direct infringement
Selling or importing product of patented process
Shipping abroad (§ 271(f) or (g))
Exemption under § 271(e)
Exemption for other experimentation
Damages calculations --
Special Factors rulings --
Enhanced damages due to willfulness
Attorney fees to patentee
Attorney fees to accused infringer
Please refer any questions to the IPIL Program Coordinator at the following e-mail address: email@example.com