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Extreme Value or Trolls on Top? The Characteristics of the Most Litigated Patents

37 Pages Posted: 21 May 2009 Last revised: 30 Sep 2012

John R. Allison

University of Texas - McCombs School of Business

Mark A. Lemley

Stanford Law School

Joshua H. Walker

Simpson Thacher & Bartlett LLP; Stanford Law School

Date Written: November 17, 2009

Abstract

We identify the patents litigated most frequently between 2000 and 2007, and compare those patents to a control set of patents that have been litigated only once in that period. The results are startling. The most litigated patents are far more likely to be software and telecommunications patents, not mechanical or other types of patents. They are significantly different from once-litigated patents in ways that signal their value up front. And they are disproportionately owned by non-practicing entities (aka trolls). The results don’t answer all the policy questions; we offer only one important piece of a larger mosaic. But they have significant implications for debates over patent reform, since we show both that the most litigated patents are the most valuable ones and that they are most commonly in the hands of companies other than the ones building new products.

Suggested Citation

Allison, John R. and Lemley, Mark A. and Walker, Joshua H., Extreme Value or Trolls on Top? The Characteristics of the Most Litigated Patents (November 17, 2009). University of Pennsylvania Law Review, Vol. 158, No. 1, December 2009; Stanford Public Law Working Paper No. 1407796. Available at SSRN: https://ssrn.com/abstract=1407796

John R. Allison

University of Texas - McCombs School of Business ( email )

CBA 5.202
University of Texas at Austin
Austin, TX 78712
United States

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Joshua H. Walker

Simpson Thacher & Bartlett LLP

2550 Hanover Street
Palo Alto, CA 94304
United States

Stanford Law School ( email )

Stanford, CA
United States

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