Patent Quality and Settlement Among Repeat Patent Litigants

Mark A. Lemley

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Intellectual Property and Patents Intellectual Property Law Law, Economics, and Judicial Systems

Abstract

Repeat patent plaintiffs - those who sue eight or more times on the samepatents - have a disproportionate effect on the patent system. They areresponsible for a sizeable fraction of all patent lawsuits. Their patentsshould be among the strongest, according to all economic measures of patentquality. And logic suggests that repeat patent plaintiffs should be riskaverse, settling more of their cases and taking only the very best to trialto avoid having their patents invalidated. In this paper, we test thosehypotheses. We find that repeat patent plaintiffs are somewhat more likelyto settle their cases. But, to our surprise, we find that when they do goto trial or judgment, overwhelmingly they lose. This result seems to bedriven by two parallel findings: both software patents and patents owned bynon-practicing entities (so-called "patent trolls") fare extremely poorlyin court. We offer some possible explanations for why a group of apparentlyweak patents nonetheless have so much influence over the patent system, andsome preliminary thoughts about how these findings should shape the patentreform debate.

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References

1994A Manifesto concerning the Legal Protection of Computer Programs 2004Incentives to Challenge and Defend Patents: Why Litigation Won't Reliably Fix Patent Office Errors and Why Administrative Patent Review Might Help 2003Ending Abuse of Patent Continuations 2012A New Look at Patent Quality: Relating Patent Prosecution to Validity 2011Are Universities Patent Trolls?

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2016Comparative Patent Quality 2015A novel approach to identify the major research themes and development trajectory: The case of patenting research 2018The anatomy of a troll? Patent licensing business models in the light of patent reassignment data 2013Threat of Litigation and Patent Value: What Technology Managers Should Know 2017Do patents work? Thickets, trolls and antibiotic resistance 2013Patent assertion entities: do they impede innovation and technology commercialisation?2017Input complementarity, patent trolls and unproductive entrepreneurship 2019Patent validity and the timing of settlements

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