Monday, June 18, 2018

PwC 2018 Patent Litigation Study Is Out

Link here.  This year's study--titled simply 2018 Patent Litigation Study--is authored by Landan Ansell, Ronen Arad, Doug Branch, HyeYun Lee, Adil Pasha, and Paul Robinson, and it reports the following findings, among others, relating to U.S. patent litigation.  The study is based on decisions PwC identified as "final decisions at summary judgment and trial recorded in two Lexis Advance databases, US District Court Cases and Jury Verdicts and Settlements, as well as in corresponding docket entries from LexisNexis CourtLink" (p.18).  "Median damages have been adjusted for inflation to 2017 US dollars" (p.18).

1.  Using an October 1-September 30 year, patent cases filed were at their lowest level since 2011 (at approximately 4,000), while patent grants attained an all-time high of approximately 350,000 (p.2).

2.  The median damages award from 1998-2017 has been $5.9 million.  The median award in 2017 was $10.2 million (compared with $6.1 million in 2016), and $6.0 million for the period 2013-17 (p.5).  (If you're interested in comparing with previous years, see my posts discussing PwC's 2017, 2016, 2015, and 2014 studies.  For my discussion of Lex Machina's 2017 Patent Litigation Year in Review, see here.) The report also states, however, that "[m]edian damages have been trending upward for the last 20 years when summary and default judgments are excluded," with a median of $9.2 million for 2013-17 (p.5).  The median award in jury trials from 2013-17 was $10.2 million, compared with $1.9 in bench trials (undoubtedly some self-selection going on here, though), and among practicing entities reasonable royalties continue to account for the majority of awards (60% reasonable royalties only, 19% lost profits only, and the remained a combination of both, for the years 2008-17) (p.6).  NPEs have achieved higher median damages awards from 2013-17 ($14.8 million, versus $4.2 million for practicing entities) (p.9).  Among NPEs, universities and nonprofits do best, with a median award of $16.6 million from 1998-2017 (compared with $11.8 million for "company" NPEs and $7.1 million for individuals) (p.10).

3.  The overall success rate for practicing entities from 1998-2017 is 37%, and for NPEs 25%.  For cases decided pretrial, practicing entities had a 16% success rate and NPEs a 6% success rate, whereas for cases ending with a trial the rates are similar (66% for practicing and 62% for nonpracticing entities) (p.8). From 2013-17, patent owners fared better with juries than with bench trials (74% versus 52% success rates) (p.7), with NPEs doing substantially worse in bench trials (36% success versus 54% for practicing entities; success rates before juries are comparable, at 72% and 76%, respectively) (p.8).  Among NPEs, universities have the highest overall success rate (47%, compared with 31% for companies and 18% for individuals) (p.10).

4.  The District of Delaware has overtaken the Eastern District of Texas as the leading venue for patent infringement actions (pp. 14-15).

5.  The study reports that "the likelihood of a willful infringement finding increased after Halo v. Pulse"--the Supreme Court's June 13, 2016 decision that makes it somewhat easier for the trier of fact to conclude that the infringement was willful, and therefore potentially deserving of an award of enhanced damages--but that "the average enhancement multiplier declined" from 2.1 to 2.5 times the actual damages (p.17).  The report doesn't specify the time frame it is using, however, though I would guess that if the study's statistics go through the end of September 30, 2017, it's describing cases decided from the date of Halo through that date, and for a comparable period preceding Halo.  In any event, the number of requests hasn't gone up a lot (from 42 to 46), but the percentage finding willfulness has increased from 36% to 54%, which would translate into an increase of 15 to 25 cases.  But again, the average enhancement has actually gone down a bit (p.17).

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