Download this Paper Open PDF in Browser

Heterogeneity among Patent Plaintiffs: An Empirical Analysis of Patent Case Progression, Settlement, and Adjudication

49 Pages Posted: 10 Oct 2017 Last revised: 17 Nov 2017

Christopher Anthony Cotropia

University of Richmond School of Law

Jay P. Kesan

University of Illinois College of Law

David L. Schwartz

Northwestern University - Pritzker School of Law

Date Written: October 8, 2017

Abstract

This article empirically studies current claims that patent assertion entities (PAEs), sometimes referred to as ‘patent trolls’ or non-practicing entities (NPEs), behave badly in litigation by bringing frivolous patent infringement suits and seeking nuisance fee settlements. The study explores these claims by examining the relationship between the type of patentee-plaintiffs and litigation outcomes (e.g., settlement, grant of summary judgment, trial, and procedural dispositions), while taking into account, among other factors, the technology of the patents being asserted and the identity of the lawyers and judges. The study finds significant heterogeneity among different patent holder entity types. Individual inventors, failed operating companies, patent holding companies, and large patent aggregators each have distinct litigation strategies largely consistent with their economic posture and incentives. These PAEs appear to litigate differently from each other and from operating companies. Accordingly, to the extent any patent policy reform targets specific patent plaintiff types, such reforms should go beyond the practicing entity versus non-practicing entity distinction and understand how the proposed legislation would impact more granular and meaningful categories of patent owners.

Keywords: Patent, Litigation, PAE, NPE, Troll, Empirical, Patent Litigation

Suggested Citation

Cotropia, Christopher Anthony and Kesan, Jay P. and Schwartz, David L., Heterogeneity among Patent Plaintiffs: An Empirical Analysis of Patent Case Progression, Settlement, and Adjudication (October 8, 2017). Journal of Empirical Legal Studies (Forthcoming); Northwestern Law & Econ Research Paper; University of Illinois College of Law Legal Studies Research Paper No. 18-10. Available at SSRN: https://ssrn.com/abstract=3049678

Christopher Cotropia

University of Richmond School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

Jay Kesan

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
217-333-7887 (Phone)
217-244-1478 (Fax)

HOME PAGE: http://www.jaykesan.com

David Schwartz (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Paper statistics

Downloads
57
Rank
316,460
Abstract Views
148