Academic Articles

In this paper 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 court in which the case was litigated. The result is a comprehensive picture of the outcomes of modern patent litigation, one that confirms conventional wisdom in some respects but […]

We offer the first comprehensive look at how a district judge’s experience affects decisionmaking in patent cases. We find that that there is a strong, statistically significant relationship between a judge’s experience and case outcome: more experienced judges are less likely to rule for the patentee. Notably, the relationship exists for rulings finding noninfringement; judicial experience had no relationship to the likelihood a judge would find a patent invalid. The relationship appears to hold across judges, rather than to be driven by the rulings of particular judges. Beyond individual judges, […]

While the main theoretical benefit of patent protection is increased innovation, some assert a swamped U.S. Patent and Trademark Office has granted an inefficiently large number of patents with negligible innovation value. This Article tests this argument’s plausibility and determines the characteristics of patents without innovation by analyzing 980 litigated patents subject to anticipation or obviousness decisions between 2000 and 2010. Using a selection corrected probit model, this Article obtains unconditional estimates of the likelihood patents with given characteristics lack innovation value. This Article estimates a surprising 28 percent of […]

“FAs recognition of the value of patents has increased dramatically over the past decade, so too has the amount of litigation associated with patent enforcement and validity challenges before U.S. district courts, the U.S. International Trade Commission (USITC), and before the U.S. Patent & Trademark Office (USPTO) In response to this ramp up, both in terms of volume and complexity, tribunals have come to recognize the substantive, procedural, and administrative challenges posed by patent litigation. These challenges include the scope of discovery implicated when, for example, multinational technology companies sue […]

Attorney bargaining has traditionally taken place in the shadow of trial, as litigants alter their pretrial behavior — including their willingness to negotiate a settlement — based on perceptions of likely outcomes at trial and anticipated litigation costs. Lawyers practicing in the shadow of trial have, in turn, traditionally formed their perception of the likely outcome at trial based on their knowledge of case precedents, intuition, and previous interactions with the presiding judge and opposing counsel in similar cases.

Today, however, technology for leveraging legal data is moving the practice of […]

Any discussion of flaws in the United States patent system inevitably turns to the system’s modern villain: non-practicing entities, known more colorfully as patent trolls. For many years, however, discussions about non practicing entities have been long on speculation and short on data.

Patent scope plays a central role in the operation of the patent system, making patent claim construction a critical aspect of just about every patent litigation. With the resurgence of patent jury trials in the 1980s, the allocation of responsibility for interpreting patent claims between trial judge and jury emerged as a salient issue. While the Supreme Court’s Markman decision usefully removed claim construction from the black box of jury deliberations notwithstanding its “mongrel” mixed fact/law character, the Federal Circuit’s adherence to the view that claim construction is a pure […]

The America Invents Act requires the study of the positive and negative effects of patent assertion entities (“PAEs”) on the economy. This report provides one account of these impacts, as they are experienced by young technology companies. How patent demands impact startups is critical because they are a vital source of innovation and new jobs,3 and whether patents hurt or help is fiercely debated. In addition, little attention has been paid to date to the distributional impacts of PAE suits. Small companies and startups are more vulnerable to failure than […]