Patent Law

Defendants winning more, post KSR

By Lawrence B. Ebert, Esq.

In the 2006 [CAFC] cases reviewed for this study, 63% of the decisions found for the defendant, 37% favored the plaintiff. In
post-KSR cases, 71% of the decisions favored the defendant, while 29% found for the plaintiff. The 11% increase in post-
KSR decisions favoring the defendant reflects, on average, an increase of patents being declared invalid in the post KSR
court.

Of citation analysis:

Forward citations have long been used as a proxy for patent value18, but, it?s well known that examiner?s ?pet citations?
and self-citations routinely skew forward citation analyses, causing this metric to be an inconsistent and unreliable
predictor of patent quality. (...)

Consistently, patents in 2006, as
well as post-KSR cases decided for the plaintiff had
higher forward citation value scores compared to
patents in cases decided for the defendant.

[Yes, footnote 18 is a cite, to among others, Adam B. Jaffe (of Innovation and its Discontents):

Hall, Bronwyn H., Jaffe, Adam B. and Trajtenberg, Manuel. (2004). Market value and patent citations. JEL Classification: O31, O38 ? 2004. ]

Full post as published by IPBiz on July 09, 2008 (boomark / email).