Who appeals (and wins) patent cases?

By Jason Rantanen

There are lots of reports of Federal Circuit choices, but extremely handful of involve the backlink concerning all situations submitted at the district court situations and appeals. This prompted the problem for me: who in fact data files appeals in patent infringement scenarios and how consultant are they of the underlying civil steps submitted in the courts? It turns out that the response is “mostly patent asserters” and that they aren’t always consultant of circumstance filings.

1 of my exploration team’s ongoing tasks is the Federal Circuit Dataset Project, which involves collecting all of the viewpoints & orders that the Federal Circuit can make out there on its web-site, coding info about them, and then placing it all together into a publicly-available databases that any one can use to respond to their individual queries about the Federal Circuit.  There’s a person-helpful portal to the choices dataset at empirical.law.uiowa.edu, and the entire dataset is readily available at https://dataverse.harvard.edu/dataverse/CAFC_Dataset_Task.

This calendar year, our big challenge involved linking up the CAFC dataset with datasets of patent infringement instances submitted in the district courts. A draft of the initially paper to spin out of this job is now up on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4162979. (There is an option to down load with out logging in, but from time to time you have to hunt for it on the webpage.)  Many thanks to the Houston Legislation Center’s Institute for Mental House and Information and facts Regulation for inviting me to existing it at their national conference in June. Some takeaways:

• For patent infringement cases submitted in between 2011 and 2016, about 6% have at minimum a single appeal, even though this amount has been declining from 7.8% of circumstances filed in 2011 to 4.4% of circumstances filed in 2016.
• The regular time from situation submitting to to start with attraction is 27 months, whilst there is sizeable variation (SD of 18 months with rightward skew).
• Appeals are overwhelmingly submitted by patent asserters: 82% of very first appeals in the established were being filed by patent asserters as opposed to 18% by accused infringers.

For this distinct challenge, we linked the Federal Circuit dataset to the Stanford NPE Litigation Databases, which includes coding on patent asserter types. (Details about the Stanford dataset are available in Miller et al., Who’s Suing Us? Decoding Patent Plaintiffs considering the fact that 2000 with the Stanford NPE Litigation Dataset, 21 Stan. Tech. L. Rev. 235 (2018)). Employing this facts, we observed some distinctions in between the frequencies of circumstance filings and appeals.  Figure 2 from the paper demonstrates the most repeated cases by Stanford litigation dataset category. Class 1 are providers that acquired patents but do not themselves make any products or supply any companies.

Determine 2 exhibits that while corporations that acquired patents (Stanford litigation dataset group 1) submitted 37% of patent infringement actions from 2011-2016, only 25% of appeals from instances filed involving 2011 and 2016 arose from all those situations. On the other hand, when products organizations accounted for only a little bit a lot more patent infringement lawsuits (just about 40%), appeals in scenarios filed by products businesses constituted 54% of all appeals filed. In other phrases, instances introduced by merchandise firms are appealed at a larger rater than cases introduced by providers that obtained patents. This is reliable with prior findings that situations introduced by PAEs settle at a higher fee than cases brought by merchandise firms. Not only that, but we also discovered a distinction in who is bringing the attraction in these scenarios: in cases introduced by a PAE, the patent asserter was the key appellant about 90% of the time, whereas in scenarios introduced by solution organizations the patent asserter was the primary appellant only about 70% of the time.

What about who wins these circumstances?  That’s a little bit much more sophisticated, and is dependent on how you outline “win.” We define a “win” as getting an affirmance if a occasion is the appellee and an affirmance-in-component, reversal or vacate if a celebration is the appellant.  Working with this definition, we uncovered that all round, patent asserters commonly drop on attractiveness, with solution businesses staying significantly a lot more profitable than PAEs. On the other hand, this is intensely affected by the actuality that both of those patent asserters commonly and PAEs precisely are in the sneakers of the appellant most of the time, and additional usually than not, the Federal Circuit affirms the district court.

The paper alone goes into additional element, like facts about affirmance premiums by appellant kind, other groups, and the forms of kinds that these decisions consider.  You can go through it here: https://papers.ssrn.com/sol3/papers.cfm?summary_id=4162979.

Disclosure: I am obtaining an honorarium from the College of Houston Law Middle Institute for Intellectual Assets & Information and facts Law on publication of this paper in the Houston Legislation Review.