Those who sue on their patents lose 75% of the time

When patent holders are in court, they only win 26% of the time according to a recent research paper by well known intellectual law professors John Allison, Mark Lemley and David Schwartz. Considering all the noise surrounding patent litigation, I think that’s a shockingly low number.

While I think this statistic is related mostly to motions in court, not actual verdicts, here are some other points from the paper you might want to consider:

  • Previously, the defendants in patent cases challenged patents based on obviousness, which is to say that they argued in court that the patent was invalid because it was obvious. These motions were expensive and had low success rates. So defendants are looking for cheaper and more effective arguments.
  • Unfortunately, it’s hard for defendants to win when they file motions asking the court declare the patent invalid for other reasons as well; however, defendants are doing very when the challenge the patent back at the PTO (through the PTAB). This might contribute a lot to the new emphasis on patent quality.
  • It turns out that defendants win most often in California, but the plaintiffs win more often in the Eastern District of Texas, Delaware, and in NYC.

This is my summary based on R. David Donoghue’s very excellent summary over at the EDTexweblog.com; he’s a patent litigator with Holland and Knight in Chicago.

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