Academic Articles

SCOTUS Decides TC Heartland Case

On Monday, May 22, 2017, the Supreme Court issued a slip opinion in the case TC Heartland LLC v. Kraft Foods Group LLC (Dkt. No. 16-341). The court unanimously* held that, under 28 U.S.C. § 1400(b) (the statute governing venue in patent suits), a domestic corporation “resides” only in its state of incorporation, consistent with its ruling in an earlier case, Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222 (1957).  The Court rejected arguments that the general venue statute, 28 U.S.C. § 1391(c), which was amended post-Fourco and twice since § 1400, overrode the definition of residence in § 1400(b) with a more expansive one that made residence coextensive with personal jurisdiction.  In doing so, the Court overruled the Federal Circuit’s decision in VE Holding Corp. v. Johnson Gas Appliance Co., 917 F. 2d 1574 (1990). * Justice Gorsuch did not participate in the decision. What Does That Mean and What Did TC Heartland Change? Why is a seemingly technical matter of statutory interpretation so significant? Before this decision, a plaintiff looking to sue a corporation for infringing its patent could choose any jurisdiction where the defendant did significant business.  Large corporations doing business all over the [...]

By |2017-10-09T20:19:58+00:00May 24th, 2017|Academic Articles, Legal Trends|

Understanding the Realities of Modern Patent Litigation

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 upends it in others... We used the Lex Machina database as our data source. Read the report JR Allison, MA Lemley, DL Schwartz - Texas Law Review, Forthcoming, 2014 ... data from Lex Machina); John R. Allison, Emerson H. Tiller, & Samantha Zyontz Patent Litigation and the Internet, 2012 STAN. TECH. L. REV., no. ... LJ 677, 682 & n.21 (2011) [hereinafter Allison et al., Patent Quality] (using litigation data from Lex Machina); John R. Allison, Mark ...

By |2017-10-09T20:45:41+00:00June 4th, 2014|Academic Articles|

Does Familiarity Breed Contempt Among Judges Deciding Patent Cases?

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, some technologies (biotechnology, mechanics) are associated with more patentee wins, while patentees are less likely to win computer hardware and software cases. Some district courts (Delaware, New Jersey) are more likely to find patents infringed. By contrast, perhaps surprisingly, we find no significant relationship between litigation in the Eastern District of Texas and a judge’s ruling for or against the patentee. Finally, we find that suing on multiple patents is associated with an increased likelihood that at least one patent will be found to be infringed. Our results challenge what has been an implicit assumption in the literature and discussion that particular districts are biased in a particular direction, driving [...]

By |2017-10-09T23:26:02+00:00November 14th, 2013|Academic Articles|

Where’s the Innovation: An Analysis of the Quantity and Qualities of Anticipated and Obvious Patents

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 all patents would be found at least partially invalid if litigated. Software, business method, and licensing firm-owned patents possess significantly higher innovation-based invalidity rates than other types of patents. Shawn P. Miller, Where’s The Innovation:an Analysis Of The Quantity And Qualities Of Anticipated And Obvious Patents, Virginia Journal Of Law & Technology, VOL. 18, NO. 01 (2013)

By |2017-10-09T23:26:29+00:00September 27th, 2013|Academic Articles|

The Impact of Local Patent Rules on Rate and Timing of Case Resolution Relative to Claim Construction: An Empirical Study of the Past Decade

"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 one another for patent infringement over a blockbuster product. Another challenge is the technical nature of the subject matter, which can range from pharmaceuticals to semiconductors. Yet another challenge includes the additional pressure of resolving disputes between two or more often highly sophisticated competitors with seemingly bottomless war chests. For the many district courts whose dockets are already overflowing, the notion of bringing all resources to bear on a dramatically increasing class of complex, high stakes, and technically demanding disputes raises serious questions about judicial resource management." Pauline M. Pelletier, The Impact of Local Patent Rules on Rate and Timing of Case Resolution Relative to Claim Construction: An Empirical Study [...]

By |2017-10-09T23:26:55+00:00September 27th, 2013|Academic Articles|

Lawyering in the Shadow of Data

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 law into the shadow of the trends and patterns observable in aggregated litigation data. In this Article, we describe the tools that are facilitating this paradigm shift, and examine how lawyers are using them to forecast litigation outcomes and reduce bargaining costs. We also explore some of the risks associated with lawyering in the shadow of data and offer guidance to lawyers for leveraging these tools to improve their practice. Our discussion pushes beyond the cartoonish image of big data as a mechanical fortuneteller that tells lawyers who will win or lose a case, supposedly eliminating research or deliberation. We also debunk the alarmist clichés about newfangled technologies eliminating [...]

By |2017-10-09T23:27:18+00:00September 12th, 2013|Academic Articles|

From De Novo Review to Informal Deference: An Historical, Empirical, and Normative Analysis of the Standard of Appellate Review for Patent Claim Construction

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 question of law subject to de novo appellate review produced an unusually high reversal rate, distorting the evidentiary foundation of claim construction determinations, delaying settlement of patent cases, running up litigation costs, and turning appellate review of nearly every patent case into re-litigation of patent claim terms. […]

By |2017-10-09T23:28:54+00:00October 5th, 2012|Academic Articles|

Startups and Patent Trolls

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 large, well-established companies, and the consequences of this vulnerability are not well understood. To assess the impact of trolls on startups, I analyzed a comprehensive database of patent litigations from 2005 to the present, conducted a non-random survey of 223 tech company startups, and interviewed nearly twenty subjects with relevant knowledge of startup patent issues. Colleen V. Chien, Startups and Patent Trolls,Santa Clara Univ. Legal Studies Research Paper No. 09-12, (2012)

By |2017-10-09T23:29:21+00:00September 14th, 2012|Academic Articles|

An Empirical Study of Certain Settlement- Related Motions for Vacatur in Patent Cases

Patent cases are well-suited for detailed empirical investigations because of the availability of specialized databases, such as the Stanford IP Litigation Clearinghouse (IPLC) … See The IPLC is presently operated by a private company, Lex Machina, Inc. ( in Palo Alto, California. The dataset for the empirical study reported in this Article was compiled primarily through the IPLC. See infra Part III. Jeremy W. Bock, An Empirical Study of Certain Settlement- Related Motions for Vacatur in Patent Cases,Indiana Law Journal, Forthcoming, (2012)

By |2017-10-09T23:30:11+00:00August 16th, 2012|Academic Articles|