Patentees overwhelmingly lose their cases, despite a seeming host of procedural advantages. The same is not true of other IP plaintiffs. Why? In this article, I suggest that the explanation lies in the “fractioning” of patent law into smaller and smaller issues. Claim construction after Markman is the clearest example, but there are others. We no longer decide in a holistic manner what a patent claim covers. Instead, we decide what each word of a claim covers. Because there are more and more such issues, and the patentee must win each of them, patentees face a form of multiple jeopardy. It is ironic that patent claims, developed to broaden and strengthen the patent right, have instead become obstacles to the patentee’s success.
Mark A. Lemley, The Fractioning of Patent Law, Stanford Public Law Working Paper No. 1895681, (2011)