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

46 Pages Posted: 20 Feb 2018

Date Written: March 2018

Abstract

This article empirically studies current claims that patent trolls, also known as patent assertion entities (PAEs) 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.

Suggested Citation

Cotropia, Christopher A. and Kesan, Jay P. and Schwartz, David L., Heterogeneity Among Patent Plaintiffs: An Empirical Analysis of Patent Case Progression, Settlement, and Adjudication (March 2018). Journal of Empirical Legal Studies, Vol. 15, Issue 1, pp. 80-125, 2018, Available at SSRN: https://ssrn.com/abstract=3124647 or http://dx.doi.org/10.1111/jels.12174

Christopher A. Cotropia (Contact Author)

University of Richmond - School of Law

28 Westhampton Way
Richmond, VA 23173
United States

Jay P. 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 L. Schwartz

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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