Patent Law

Litigation Trends

By Gary Odom and Jordan Kuhn

What litigators already know: rocket dockets are the best bet; jury trials trump bench trials for awards; being plaintiff is advantageous. East Virginia and Western Wisconsin have the fastest rockets in their dockets, but offer only an average 50-50 chance of success. Mid-Florida and East Texas report the highest patent holder success rate, 67% & 55% respectively. Overall, East Virginia rates the top jurisdiction.

The rocket docket factor: there's a modest correlation between judicial efficiency and plaintiff success, both in percent and payoff. Time-to-trial starts the clock at complaint date to the first day of trial, bench or jury.

Success is considered liability + damages for the patent holder; a "loss" being a win for the alleged infringer.

In 2007, 58% of trials were from the bench, 42% jury trial, nearly the same as 2006. That reflects a marked shift toward jury trial from past decades.

Appeal changes the dice roll. Patent holders appeal their losses more often than alleged infringers - after summary judgment, 34% versus 23%; after trial: 57% versus 33%. Patent holders have better luck on appeal after trial, and from jury trials than bench trials, compared to summary judgment; conversely so, infringers.

At 71%, North Illinois takes the cake for decisions reversed or modified upon appeal.

Source: PriceWaterhouseCoopers

Patent Hawk can be the razor's edge for an alleged infringer, sharpening invalidity defenses successfully in over two-thirds of cases.

Next: the damages scene.

Full post as published by The Patent Prospector on March 15, 2008 (boomark / email).