On Predicting Patent Litigation
Texas Law Review See Also, Vol. 90, No. 75, 2012
13 Pages Posted: 9 Jan 2012 Last revised: 2 Jan 2015
Date Written: January 8, 2012
The patent system - and information about the patent system - is becoming more available and more digitalized. One area of interest involves using newly available information to predict patent litigation - to identify patents that will in the future be litigated. If patents that will be litigated can be identified ahead of time, such identification might offer an advantage to investors and innovators that need to transact around patents. In addition, such identification might help patentees because it might make it more likely that they get paid something for their innovation, and thus might make it more likely that they recoup some of the investment made in an innovation.
This short essay raises and discusses several fundamental problems with predicting patent litigation. It may therefore be a useful source to anyone who is considering using patent document and patent file data to identify patents that will be litigated and patents that will not. Perhaps the most surprising message from the analysis is just how difficult it might be to predict patent litigation to a level sufficient to provide any real practical utility to innovators. The form of the essay is a Response.
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