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.

Gabriel on the CJEU’s Decision in Mylan v. Gilead

Marianne Gabriel has published an article titled Quand le Cour de justice rappelle la nécessité d’un régime équilibré!  CJUE, 11 janv. 2024, aff. C-473/22, Mylan AB c/ Gilead (“When the Court of Justice Recalls the Need for a Regime in Balance!  CJEU, Jan. 11, 2024, Case C-473/22, Mylan AB v. Gilead”), Propriété Industrielle, avril 2024, pp. 3-5.  Ms. Gabriel argues (and I agree, see here) that the CJEU was right to conclude this past January that member states may award compensation to a defendant who has been excluded from the market on the basis of a preliminary injunction, where the patent is later found to be invalid or not infringed, regardless of whether the patent owner was at fault in pursuing the injunction.  As I noted when the case came out earlier this year, it is a bit hard to square with the CJEU’s previous decision in Bayer v. Richter, which appeared to permit member states to deny compensation, at least where the defendant had entered at risk before attempting to invalidate the patent in suit and the patent owner was not at fault; and it is still a bit unclear to me how exactly to square the strict liability standard affirmed in Mylan v. Gilead with some of the CJEU’s statements in that case approving of the consideration of all the relevant facts and circumstances in determining the amount of compensation due.  That said, I think the decision is a step in the right direction, and I assume that these other matters are fleshed out in future cases.  The author, as I said, approves of the recent decision as well, and notes that it is consistent with French precedent pre-dating Bayer v. Richter, such as Laboratoires Negma SAS v. Biogaran SAS, Cour d'appel de Paris, Jan. 31, 2014 (for previous discussion, see here).  As the title of the article suggests, and if I understand correctly, Ms. Gabriel believes that the recent decision restores balance to the system, insofar as both parties assume a certain degree of risk:  the defendant, that it will be enjoined, and the plaintiff, that it will have to pay if the injunction is granted and thereafter lifted.  But there is no reason why the defendant’s risk should also entail not being restored to the position it would have occupied, had the injunction never been entered; in particular, the perceived need for a high level of IP protection does not weigh in favor of imposing this burden on a defendant who, it turns out, is merely engaging in lawful competition.  Ms. Gabriel also holds out hope that the UPC will interpret UPCA article 60(9) and Rules of Procedure 213 and 354(2) in like fashion.    

Blogging break

 I will take a blogging break this coming week of April 22, to catch up some on other work.