2024 Marcum Patent Litigation Study

Andrew Karpan’s recent article on Law360 alerted me to the publication of the 2024 Marcum Patent Litigation Study.  According to Mr. Karpan, the lead author of the study, William Scally, is a former director at PwC, which (as some readers may recall) published an annual Patent Litigation Study for several years, but apparently stopped doing so a few years ago.  This new report by Marcum is therefore a welcome addition, which I commend to your attention. 

According to the report, “Marcum identified final verdicts after any appeal proceedings when the cases were closed and recorded in the Westlaw database from the Federal District Courts. Our study excludes cases in which a settlement was reached prior to a final verdict, but includes verdicts reached even though there was a later settlement negotiated. If the case was ongoing during the years of 2003 to 2022, and preliminary injunctions and verdicts prior to any appeals had been determined, these results are excluded from our study pending final verdict ruling which could be included in later years. . . . The study identified if the patent owner was an NPE. An NPE is an entity that does not have the capability to commercialize products or services with features protected by the patent, including universities, individuals, research, and assertion entities. . . . The median damages were adjusted for inflation to 2022, in US dollars.”

Among the highlights are the following:

1. From 2003-22, the overall median U.S. patent damages award was $3.7 million ($5.6 million excluding default judgments).  From 2018-22, the median award was $2.4 million ($5.6 million excluding default judgments), and in 2022 the median was $1.8 million ($5.1 million excluding defaults).  The median awards for NPEs were consistently higher (“two to three times higher than the median damages award for practicing entities”), though “the vast majority of remedies (77%) are awarded to operating or practicing entities.”

2. The number of permanent injunctions awarded has gone from 80 from 2008-12 to 36 from 2018-22.  “In the most recent period, there was an average of 7 permanent injunctions per year, with 29 injunctions granted to practicing entities and 7 injunctions to NPEs.”

3.  From 2003-22, enhanced damages were awarded in 140 cases, accounting for 22% of all instances where damages were awarded,” and the overall multipliers were approximately 2.3.