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In Patent Litigation, Study Says, Plus ça Change

Publication Date: 
May 30, 2014
Jan Wolfe covers a study co-authored by Professor Mark Lemley on the effects of changing patent litigation laws on patent cases in the last 5 years. 

The patent litigation playbook has changed dramatically over the past two decades. But according to a trio of academics and patent experts, the average win-loss record has barely budged.

That’s one of the conclusions in a new paper by John Allison of University of Texas, Mark Lemley of Stanford Law School and David Schwartz of Chicago-Kent College of Law. The professors say they spent “hundreds of hours” investigating what happened in every patent case filed in 2008 and 2009 and decided between 2009 and 2013, and then they compared their findings with a similar study two of them published 16 years ago. The finished product is Understanding the Realities of Modern Patent Litigation, which will be published in the Texas Law Review.

Allison, Lemley and Schwartz found that patent-holders “lose nearly three-quarters of the time when the court definitely resolves the merits.” When cases go to trial, on the other hand, patent-holders win about 60 percent of the time. Related studies over the years have reached similar conclusions. (In addition to his academic position at Stanford, Lemley has an active litigation practice at Durie Tangri.)