Repeat patent plaintiffs—those who sue eight or more times on the same patents—have a disproportionate effect on the patent system. They are responsible for a sizeable fraction of all patent lawsuits. Their patents should be among the strongest, according to all economic measures of patent quality. And logic suggests that […]
The United States International Trade Commission (“ITC”) is a relatively new player in patent enforcement. The ITC, an administrative agency, can exclude the importation of infringing products into the United States, and interest from patentees in obtaining such remedies has grown as of late. Yet, many practitioners and scholars postulate […]
A significant part of the problem with patent damage awards comes from the non-exclusive, fifteen-factor “Georgia-Pacific” test now taken as the gold standard for calculating reasonable royalty damages. Simply handing the question of reasonable royalty to the jury, without more, is not a recipe for precision in damages analysis. But […]
This paper presents results from a multiple-year project concerned with the involvement of foreign (non-U.S.) entities in U.S. patent litigation. A comparison of data from 2004 and 2009 that cover 5,407 patent cases filed in U.S. federal district courts in those two years evidences an increase in the number of […]
In a comprehensive study on the inequitable conduct defense, Lex Machina reports on inequitable conduct findings in federal district court patent litigation cases terminated between January 1, 2005 and May 31, 2010. The study covers pleadings, summary judgment, trial, post-trial, and appellate events and analyzes event phase and termination data.
A patent challenger who defeats a patent wins spoils that it must share with the world, including all its competitors. This forced sharing undercuts an alleged infringer’s incentive to stay in the fight to the finish—especially if the patent owner offers an attractive settlement. […]
This paper explores empirically the interplay between patent pooling and litigations using data on 1564 essential U.S. patents belonging to 8 different pools and a control database with patents having the same characteristics. We investigate two main questions. We first assess whether the introduction in a pool fosters the patents’ […]
Forum shopping is alive and well in patent law. The patent venue statute allows plaintiffs to file suit anywhere in the country where the defendant’s product is sold or used. Despite the existence of a unified court of appeals that hears virtually all patent cases, patent plaintiffs – and those […]
In 1999, the Supreme Court invoked state sovereign immunity to strike down provisions in the patent and trademark laws purporting to hold states liable for the infringement of these intellectual properties. These decisions ignited a series of criticisms, including allegations that sovereign immunity gives states an unfair advantage in the […]
In a series of cases spanning more than one hundred years, courts and the US patent office have made clear that design patents are not to be justified by a fact that the newly invented ornamental design aids in distinguishing a company’s product from those of its competitors. This article […]