Opening Pandora's Box: Analyzing the Complexity of U.S. Patent Litigation

18 Yale J.L. & Tech. 217 (2016)

48 Pages Posted: 24 Feb 2016 Last revised: 28 Oct 2016

See all articles by Jonathan H. Ashtor

Jonathan H. Ashtor

Paul, Weiss, Rifkind, Wharton & Garrison LLP; Benjamin N. Cardozo School of Law

Date Written: February 22, 2016

Abstract

Patent litigation is widely regarded as one of the most complex types of civil litigation, with costs often totaling millions of dollars and typical case durations stretching for years. Also, the burdens of patent case complexity land on both sides of the technology divide, as large producers face skyrocketing defense budgets and inventors and startups risk being “priced out” from enforcing their rights. Yet, the complexity of patent cases is sparsely understood as an empirical matter. Instead, patent litigation is generally accepted to be a “Pandora’s Box” of incalculable complexity, which, once opened, is only arduously and unpredictably concluded.

This study undertakes a comprehensive exploration of patent litigation complexity, first defining robust metrics of complexity and continuing with rigorous analysis of the determinants thereof. We focus our study on the eight years of U.S. District Court litigation leading up to passage of the America Invents Act, and we mine extensive detail of more than 1000 cases during this timeframe. Using this data we ask targeted questions about patent case complexity, including what types of cases are most complex, how defense costs compare to enforcement costs, what factors are associated with particularly high complexity, and how complexity has changed over time. Finally, we conduct a large-scale event study to identify the causal impact of key policy changes on case complexity, specifically the landmark shifts in remedies law over a series of recent Federal Circuit decisions.

The analysis herein is of crucial importance to patent policy. As juridical property, patent rights are ultimately enforced and defended against in legal proceedings, and thus the complexity of such proceedings directly impacts the rights afforded by patents and recourse thereunder. Understanding case complexity is therefore a necessary contribution to patent policy discourse. Moreover, the framework developed herein sets the stage for future analysis of the complexity impact of new policy measures.

Keywords: patent litigation, case complexity, empirical legal study

JEL Classification: K00, K39, K41

Suggested Citation

Ashtor, Jonathan H., Opening Pandora's Box: Analyzing the Complexity of U.S. Patent Litigation (February 22, 2016). 18 Yale J.L. & Tech. 217 (2016). Available at SSRN: https://ssrn.com/abstract=2736556 or http://dx.doi.org/10.2139/ssrn.2736556

Jonathan H. Ashtor (Contact Author)

Paul, Weiss, Rifkind, Wharton & Garrison LLP ( email )

New York, NY 10019
United States
212-373-3823 (Phone)

Benjamin N. Cardozo School of Law ( email )

United States

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