Today Is The Blog's 11th Anniversary

I completely forgot until just now—I launched this blog on May 6, 2013, exactly eleven years ago today.  I'm happy to say that I plan to continue doing this indefinitely.  I hope my readers continue to find it a useful resource.

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. 

Picht, Cotter & Habich on German FRAND Cases

Peter Georg Picht, Erik Habich, and I have an edited volume coming out sometime this summer, titled FRAND: German Case Law and Global Perspectives (Edward Elgar Publishing).  The volume will include seven chapters providing a comprehensive look at the issues the German courts have addressed in FRAND cases, and an additional eight chapters composed of essays by each of us and by leading judges and scholars.  On SSRN now is a draft of the first seven (case law) chapters.  Here is a link, and here it he abstract:

           This is a draft of the case law portion of our forthcoming edited volume, FRAND: German Case Law and Global Perspectives (Edward Elgar Publishing 2024). It provides a comprehensive discussion of the German courts' analysis of the principal issues arising in litigation over the licensing of FRAND-committed standard-essential patents, arranged thematically into seven chapters: Willingness to License on FRAND Terms; FRAND Offer; Reaction Duties and Counteroffer; Confidentiality; FRAND Licensing and SEP Transfer; Damages Claims; and Anti-Antisuit injunctions.