Monday, June 6, 2016

2016 PricewaterhouseCoopers Patent Litigation Study Is Now Out

Here is a link; the study's methodology is set forth on p.21.  Some highlights from the report:

1.  The number of patents granted and the number of infringement actions filed in 2015 each dropped by about 2% from 2014 (p.1).  Jury trials predominate (p.2).

2.  Focusing on district court decisions, the median patent damages award in the U.S. in 2015 was $10.2 million, the highest in ten years (p.4).  Median jury awards from 2011-15 were $10.1 million while median bench trial awards were $0.6 million (p.5).  As reported in years past, reasonable royalties are awarded much more frequently than lost profits (p.6). The median award to nonpracticing entities (NPEs) from 1996-2015 has been consistently higher than the median for practicing entities (PEs), with the figures for 2011-15 being $13.3 million for NPEs vs. $4.9 million for PEs) (pp. 10, 11).  PEs nevertheless have had an overall higher success rate from 1996-2015 (pp. 9, 11), and the overall success rate for all patentees from 1996-2015 has been 33% (p.14).

3.  Fee awards have become more prevalent since the Supreme Court's 2014 decisions in Octane Fitness and Highmark.  According to the report (p.7):
To study trends in the awarding of attorneys’ fees, and the impact of these decisions, PwC analyzed patent decisions between January 1, 2013 and December 31, 2015 that reference 35 U.S.C. 285 (as reported by LexisNexis). This provided a relatively balanced data set prior to (about 16 months) and after (about 20 months) the Octane and Highmark decisions. We focused solely on those cases where a decision on the merits of awarding attorneys’ fees was made (as opposed to analyzing all requests, including open and dismissed claims).
Since April 29, 2014 (the date of these twin Supreme Court decisions), there has been a significant rise in both the percentage of attorneys’ fees awards granted under 35 U.S.C. 285, and the total number of times attorneys' fees are awarded. As indicated by the charts, the percentage of attorneys’ fees awards granted in the 16 months prior to Octane and Highmark was 26%, which jumped significantly in the subsequent 20 months to 41%. The average number of fees award decisions also increased from about 4 per month to 7 per month.
Our data indicates that the median attorneys’ fees awarded was approximately $0.3 million post-Octane and Highmark while the maximum amount awarded in fees during this time frame was $12.5 million. Furthermore, post-Octane and Highmark, the median attorneys’ fees awarded represented 82% of the median amount requested.
4.  There are also data on specific industries, forums and judges, and appeals.

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