Who Appeals (and Wins) Patent Infringement Cases?

Abstract

This article draws on a newly-constructed multilayered relational dataset of patent infringement cases to assess hypotheses about different types of patent asserters and what happens in appeals of those cases. We situate this article within the ongoing debates around companies that acquire patents but who do not themselves practice the claimed technologies, particularly patent assertion entities (PAEs). We find that, for some aspects of appeals, such as whether there was an appeal in a patent infringement case, cases brought by PAEs look similar on appeal to cases brought by product companies. But we also observe some substantial differences among litigant types—in particular, whether cases filed by PAEs are appealed more often and who is filing the appeals in those cases. We also observe that, regardless of the patent asserter type, most appeals are filed by patent owners, not accused infringers. Furthermore, even accounting for this difference, accused infringers are more successful on appeal than patent asserters—again, regardless of the type of patent asserter.

Keywords: patent, litigation, empirical, appeals