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PATENT LITIGATION REMEDIES: SOME STATISTICAL OBSERVATIONS

PATENT LITIGATION REMEDIES: SOME STATISTICAL OBSERVATIONS. PROF. PAUL JANICKE UNIVERSITY OF HOUSTON LAW CENTER. 2005 PATENT DISPOSITIONS [2,231]. 2006 PATENT DISPOSITIONS [2,416]. DISPOSITION MODES FOR OTHER KINDS OF CASES -- 2004. HOW DISPOSITION MODES CHANGED OVER TIME.

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PATENT LITIGATION REMEDIES: SOME STATISTICAL OBSERVATIONS

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  1. PATENT LITIGATION REMEDIES: SOME STATISTICAL OBSERVATIONS PROF. PAUL JANICKE UNIVERSITY OF HOUSTON LAW CENTER

  2. 2005 PATENT DISPOSITIONS [2,231]

  3. 2006 PATENT DISPOSITIONS [2,416]

  4. DISPOSITION MODES FOR OTHER KINDS OF CASES -- 2004

  5. HOW DISPOSITION MODES CHANGED OVER TIME

  6. NUMBER OF CASES BROUGHT • PEAKED AT 3,075 IN FY2004 • DIPPED TO 2,720 IN2005 • 2,830 IN 2006 * SOURCE: ADMIN. OFFC. of U.S. COURTS ANNUAL RPTS.

  7. FY2006 BUSIEST PATENT DISTRICTS:

  8. COST OF GETTING TO JUDGMENT • COUNSEL FEES and RELATED COSTS PER AIPLA 2005 SURVEY: • $4,500,000 [NATIONWIDE MEDIAN, CASES INVOLVING >$25M] • REALITY: PROBABLY VALID FOR “REGULAR” CLIENTS AND HOURLY BILLING • REALITY: CONTINGENCY AND SMALL TROLL REPRESENTATIONS PROBABLY MUCH LOWER

  9. DISRUPTION COSTS OF LITIGATION ARE HIGH FOR LARGE ENTITIES • TIME TO JUDGMENT IS IMPORTANT • BIG COS. FEEL PRESSURED TO SETTLE EARLY

  10. WHAT ARE THE JURY VERDICTS? • NOT SO HIGH • PRESS CAPTURES ONLY THE HIGH-NUMBER VERDICTS • IN 2005-2006, VERDICTS WERE MODEST VIS-A-VIS PRESS COVERAGE IMPRESSIONS SOURCE: COURT DOCKET SHEETS

  11. PATENT VERDICTS – 2005-2006

  12. PATENT VERDICTS – 2005-2006

  13. PATENT VERDICTS – 2005-2006

  14. PATENT VERDICTS – 2005-2006

  15. PATENT VERDICTS – 2005-2006

  16. PATENT VERDICTS – 2005-2006

  17. PATENT VERDICTS – 2005-2006

  18. MEDIAN WINNING VERDICT • $4,167,936 • ONLY VERDICTS ARE VIEWED HERE • FINAL JUDGMENT CAN BE HIGHER DUE TO INTEREST AND POSSIBLE ENHANCEMENT; OR LOWER DUE TO REMITTITUR OR JMOL • IF THE 2007 VERDICT IN LUCENT v. MICROSOFT STANDS ($1.5B), THE MEDIAN WILL BE NUDGED UP

  19. BY DISTRICTS • LOOKING AT SOME HIGH-VOLUME DISTRICTS FOR 2005-06:

  20. GROUPED BY DISTRICT

  21. GROUPED BY DISTRICT

  22. GROUPED BY DISTRICT

  23. GROUPED BY DISTRICT

  24. HOW LONG DOES IT TAKE? • TIME FROM FILING TO JUDGMENT IN THE DISTRICT COURT • FOR SETTLED CASES: SEE THE NEXT SLIDE • FOR ADJUDICATED CASES: SEE THE SLIDE FOLLOWING IT SOURCE: FROM DISPOSITION INFORMATION CONTAINED IN FED. JUDICIAL CENTER, INTEGRATED DATABASE 2006

  25. Duration of Settled Cases – FY06

  26. Duration of Non-Settled Cases – FY06

  27. COMMENTS • MOST SETTLEMENTS COME EARLY • FOR NON-SETTLED CASES: • THE EARLY YELLOW BAR IS MAINLY DEFAULTS • DARK GREEN BARS ARE MAINLY SUMMARY JUDGMENTS • LIGHT GREEN BARS ARE TRIALS • BRIGHT GREEN BAR AT RIGHT IS A MIX OF LATE DISPOSITIONS

  28. IMPACT OF eBAY ON PERMANENT INJUNCTIONS • SOME • RATE OF DENIAL PRE-eBAY WAS 16% • NOW IT IS ABOUT 25% SOURCES: LEXIS AND WESTLAW RESEARCH; DOCKET SHEETS

  29. APPELLATE POST- eBAY RULINGS ON PERMANENT INJUNCTION

  30. POST-eBAY DISTRICT COURT RULINGS ON PERMANENT INJUNCTION

  31. COURTS HAVE NOT YET FULLY ANALYZED THE CHOICES • RISKS OF REPETITIVE LITIGATION DROVE THE PRE-eBAY CASES • CHOICE TODAY REALLY IS: • DEALING WITH ANY FUTURE PROBLEMS BY CONTEMPT PROCEEDING • DEALING WITH ANY FUTURE PROBLEMS BY FOLLOW-ON LAWSUIT (WITH INJUNCTION NEXT TIME AROUND; TREBLE DAMAGES; ATTORNEY FEES)

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