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PATENT LITIGATION REMEDIES: SOME STATISTICAL OBSERVATIONS. PROF. PAUL JANICKE UNIVERSITY OF HOUSTON LAW CENTER. 2005 PATENT DISPOSITIONS [2,231]. 2006 PATENT DISPOSITIONS [2,416]. DISPOSITION MODES FOR OTHER KINDS OF CASES -- 2004. HOW DISPOSITION MODES CHANGED OVER TIME.

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patent litigation remedies some statistical observations

PATENT LITIGATION REMEDIES: SOME STATISTICAL OBSERVATIONS

PROF. PAUL JANICKE

UNIVERSITY OF HOUSTON LAW CENTER

number of cases brought
NUMBER OF CASES BROUGHT
  • PEAKED AT 3,075 IN FY2004
  • DIPPED TO 2,720 IN2005
  • 2,830 IN 2006

* SOURCE: ADMIN. OFFC. of U.S. COURTS ANNUAL RPTS.

cost of getting to judgment
COST OF GETTING TO JUDGMENT
  • COUNSEL FEES and RELATED COSTS PER AIPLA 2005 SURVEY:
    • $4,500,000 [NATIONWIDE MEDIAN, CASES INVOLVING >$25M]
    • REALITY: PROBABLY VALID FOR “REGULAR” CLIENTS AND HOURLY BILLING
    • REALITY: CONTINGENCY AND SMALL TROLL REPRESENTATIONS PROBABLY MUCH LOWER
slide9
DISRUPTION COSTS OF LITIGATION ARE HIGH FOR LARGE ENTITIES
  • TIME TO JUDGMENT IS IMPORTANT
    • BIG COS. FEEL PRESSURED TO SETTLE EARLY
what are the jury verdicts
WHAT ARE THE JURY VERDICTS?
  • NOT SO HIGH
    • PRESS CAPTURES ONLY THE HIGH-NUMBER VERDICTS
  • IN 2005-2006, VERDICTS WERE MODEST VIS-A-VIS PRESS COVERAGE IMPRESSIONS

SOURCE: COURT DOCKET SHEETS

median winning verdict
MEDIAN WINNING VERDICT
  • $4,167,936
  • ONLY VERDICTS ARE VIEWED HERE
  • FINAL JUDGMENT CAN BE HIGHER DUE TO INTEREST AND POSSIBLE ENHANCEMENT; OR LOWER DUE TO REMITTITUR OR JMOL
  • IF THE 2007 VERDICT IN LUCENT v. MICROSOFT STANDS ($1.5B), THE MEDIAN WILL BE NUDGED UP
by districts
BY DISTRICTS
  • LOOKING AT SOME HIGH-VOLUME DISTRICTS FOR 2005-06:
how long does it take
HOW LONG DOES IT TAKE?
  • TIME FROM FILING TO JUDGMENT IN THE DISTRICT COURT
    • FOR SETTLED CASES: SEE THE NEXT SLIDE
    • FOR ADJUDICATED CASES: SEE THE SLIDE FOLLOWING IT

SOURCE: FROM DISPOSITION INFORMATION CONTAINED IN FED. JUDICIAL CENTER, INTEGRATED DATABASE 2006

comments
COMMENTS
  • MOST SETTLEMENTS COME EARLY
  • FOR NON-SETTLED CASES:
    • THE EARLY YELLOW BAR IS MAINLY DEFAULTS
    • DARK GREEN BARS ARE MAINLY SUMMARY JUDGMENTS
    • LIGHT GREEN BARS ARE TRIALS
    • BRIGHT GREEN BAR AT RIGHT IS A MIX OF LATE DISPOSITIONS
impact of ebay on permanent injunctions
IMPACT OF eBAY ON PERMANENT INJUNCTIONS
  • SOME
  • RATE OF DENIAL PRE-eBAY WAS 16%
  • NOW IT IS ABOUT 25%

SOURCES: LEXIS AND WESTLAW RESEARCH; DOCKET SHEETS

courts have not yet fully analyzed the choices
COURTS HAVE NOT YET FULLY ANALYZED THE CHOICES
  • RISKS OF REPETITIVE LITIGATION DROVE THE PRE-eBAY CASES
  • CHOICE TODAY REALLY IS:
    • DEALING WITH ANY FUTURE PROBLEMS BY CONTEMPT PROCEEDING
    • DEALING WITH ANY FUTURE PROBLEMS BY FOLLOW-ON LAWSUIT (WITH INJUNCTION NEXT TIME AROUND; TREBLE DAMAGES; ATTORNEY FEES)
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