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Surprises Found In Data On IP Suits

Publication Date: 
December 10, 2008
Source: 
Law.com
Author: 
Zusha Elinson

Professor Mark A Lemley is quoted and Executive Director of the Intellectual Property Litigation Clearinghouse Joshua Walker is mentioned in a Law.com article about the newly launched IP Litigation Clearinghouse:

It's not true that patent infringement suits are going through the roof -- filings have held steady for eight years -- but there are a whole lot more defendants out there looking for lawyers.

While many IP litigators have been busier in the past few years, the actual number of infringement suits has hovered between 2,300 and 2,800 a year. But in 2007, the number of defendants named in these cases jumped from around 6,000 in 2006 to 9,000.

That's just one of the facts revealed by Stanford Law School's Intellectual Property Litigation Clearinghouse, a searchable online database unveiled Monday evening that tracks all patent cases since 2000. Offering hard statistics on trends, from how many suits have been filed to how plaintiffs fare in front of a particular judge, the clearinghouse is being greeted enthusiastically by lawyers.

...

Mark Lemley, an IP law professor at Stanford who spearheaded the project, said that the database revealed some surprising trends.

For instance, in spite of all the whining by big tech companies besieged by infringement suits about how unfair the patent litigation system is, defendants actually win more in the courtroom than plaintiffs, 57 percent to 43 percent.

"It's clear that if you're willing to take the case to judgment, you've got a decent shot at avoiding liability," Lemley said. "What's probably concealed in the data is how many people are paying to get rid of threats."

...

This year, the number of defendants has been a little more on pace with previous years, although the numbers don't reflect the full year. Lemley speculated that plaintiffs were trying to sue as much as they could in 2007 for fear that the congressional rumblings on patent reform would become reality.

...

"One of the surprises that we found was the District of Delaware, which is very unlikely to grant for summary judgment," Lemley said. "The assumption was that you'll file in the Eastern District of Texas because you'll get to trial, but your odds of getting trial are much greater if you file in Delaware."

The clearinghouse has already spawned a number of research projects, including one on the most talked-about subjects in patent litigation: nonpracticing entities, derogatorily called "patent trolls," whose main business is suing for patent infringement.

Lemley and Nathan Myhrvold, founder of giant patent-holding company Intellectual Ventures, are working on a project using the database that will classify exactly who is filing all the patent infringement lawsuits, Lemley said. He also said the database may provide clarity for those looking at issues of patent reform.

The IP clearinghouse isn't just devoted to 23,000 patent suits. Copyright, trademark and trade secret cases have also been entered, bringing the total number of cases to around 78,000, although those aren't as ready for statistical analysis yet.

While Lemley spearheaded the project, the clearinghouse's executive director is Joshua Walker, an IP lawyer who has long been building legal data collections. The project is also sponsored by companies on either side of the debate over patent reform from Cisco Systems Inc., which supports limiting patent-holders' rights, to Qualcomm Inc., which takes the opposite position.