Understanding the Realities of Modern Patent Litigation

33 Pages Posted: 28 May 2014 Last revised: 7 Oct 2014

John R. Allison

University of Texas - McCombs School of Business

Mark A. Lemley

Stanford Law School

David L. Schwartz

Northwestern University - Pritzker School of Law

Date Written: May 29, 2014

Abstract

Sixteen years ago, two of us published the first detailed empirical look at patent litigation. In this Article, we update and expand the earlier study with a new hand-coded data set. We evaluate all substantive decisions rendered by any court in every patent case filed in 2008 and 2009 — decisions made between 2009 and 2013. We consider not just patent validity but also infringement and unenforceability. Moreover, we relate the outcomes of those cases to a host of variables, including variables related to the parties, the patents, and the courts in which those cases were litigated. The result is a comprehensive picture of the outcomes of modern patent litigation, one that confirms conventional wisdom in some respects but upends it in others. In particular, we find a surprising amount of continuity in the basic outcomes of patent lawsuits over the past twenty years, despite rather dramatic changes in who brought patent suits during that time.

Suggested Citation

Allison, John R. and Lemley, Mark A. and Schwartz, David L., Understanding the Realities of Modern Patent Litigation (May 29, 2014). 92 Texas Law Review 1769 (2014); Chicago-Kent College of Law Research Paper No. 2014-12; Stanford Public Law Working Paper No. 2442451. Available at SSRN: https://ssrn.com/abstract=2442451

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

David L. Schwartz

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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