Friday, February 16, 2018

Lex Machina 2017 Patent Litigation Year in Review

Lex Machina's Patent Litigation Year in Review 2017, authored by Brian Howard, is now available.  As in previous years, the report presents a wealth of data on U.S. patent litigation.  This year's report includes an extensive discussion of the effect of the TC Heartland case on patent venue (which, as many readers are probably aware, is now to some degree shifting away from the Eastern District of Texas to the District of Delaware), as well as a brief section on design patent litigation.  (For brief discussion of TC Heartland on this blog, see here.)  Page 28 includes some data on injunctions, which Lex Machina classifies by default/consent and merit-based decisions, as well as by permanent injunctions, preliminary injunctions, and TROs.  I was somewhat surprised to see that, among the merit-based decisions (80 cases in 2017), motions for permanent injunctions were granted in 31 cases and denied in only 2 cases.  (Is that because litigants can now predict most of the time whether a permanent injunction is likely or not, and thus either are (1) agreeing to the entry of a permanent injunction when it's likely one will be granted, and (2) not bothering to request a permanent injunction when it isn't?)  The grant rate for merit-based preliminary injunctions is 19% (8 out of 42), which seems about right to me, and for TROs 38% (but based on only a handful of cases, 3 grants out of 8 motions).  There are also data on damages, showing for example that in 2017 courts awarded $763 million in reasonable royalties and $284 million in lost profits, "with only a few outliers driving the high totals.  Among all damages awarded in cases filed since the year 2000, 90% of the reasonable royalty awards in cases have been less than $46.5m, 75% less than $15.2m, and half less than approximately $4.4m; the amounts for lost profits are lower" (p.30).  Finally, there is also a chart on ITC investigations, which indicates that 60 were filed in 2017 (p.39).

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