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Does Familiarity Breed Contempt Among Judges Deciding Patent Cases?

38 Pages Posted: 1 Nov 2013 Last revised: 1 Aug 2014

Mark A. Lemley

Stanford Law School

Su Li

University of California, Berkeley - School of Law

Jennifer M. Urban

University of California, Berkeley - School of Law

Date Written: May 2014

Abstract

We offer the first comprehensive look at how a district judge’s experience affects decisionmaking in patent cases. We find that that there is a strong, statistically significant relationship between a judge’s experience and case outcome: more experienced judges are less likely to rule for the patentee. Notably, the relationship exists for rulings finding noninfringement; judicial experience had no relationship to the likelihood a judge would find a patent invalid. The relationship appears to hold across judges, rather than to be driven by the rulings of particular judges. Beyond individual judges, some technologies (biotechnology, mechanics) are associated with more patentee wins, while patentees are less likely to win computer hardware and software cases. Some district courts (Delaware, New Jersey) are more likely to find patents infringed. By contrast, perhaps surprisingly, we find no significant relationship between litigation in the Eastern District of Texas and a judge’s ruling for or against the patentee. Finally, we find that suing on multiple patents is associated with an increased likelihood that at least one patent will be found to be infringed.

Our results challenge what has been an implicit assumption in the literature and discussion that particular districts are biased in a particular direction, driving forum shopping. And they test for the first time the implicit assumption in the literature, in calls for specialized patent trial courts, and in the Patent Pilot Program, that experience with patent cases at the trial level will lead to different — usually assumed to be “better” — outcomes from what we see from generalist courts. Our results suggest that there is a difference, but that “better” may be in the eye of the beholder. They suggest some sort of learning effect among district court judges across the country, and that patentees benefit from litigating before inexperienced judges, at least on issues of infringement. Depending on the reason for this effect, adoption of a specialized patent trial court might help accused infringers but not patentees, raising broader questions about patent reform and how to measure the value of an expert court.

Suggested Citation

Lemley, Mark A. and Li, Su and Urban, Jennifer M., Does Familiarity Breed Contempt Among Judges Deciding Patent Cases? (May 2014). Stanford Public Law Working Paper No. 2347712; UC Berkeley Public Law Research Paper No. 2347712. Available at SSRN: https://ssrn.com/abstract=2347712 or http://dx.doi.org/10.2139/ssrn.2347712

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

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

Su Li

University of California, Berkeley - School of Law ( email )

Berkeley, CA 94720
United States
8476449763 (Phone)

Jennifer M. Urban

University of California, Berkeley - School of Law ( email )

342 Boalt Hall, North Addition
Berkeley, CA 94720-7200
United States
(510) 642-7338 (Phone)

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