Patent Litigation Research Articles

Technical Documentation for Patent Litigation Docket Reports Data, 1963-2020

Technical Documentation for Patent Litigation Docket Reports Data, 1963-2020

The Efficiency of Patent Litigation

The Efficiency of Patent Litigation

10x Defends Patent Litigation Strategy after Criticism from Researchers, Rivals

10x Defends Patent Litigation Strategy after Criticism from Researchers, Rivals

The dilemma and improvement of anti-suit injunctions in standard-essential patent litigation in China

Allocating jurisdiction and harmonizing anti-suit injunctions (ASIs) in concurrent litigation is a challenging task due to the complex and transnational nature of standard essential patent (SEP) licensing concerns. Notably, in the case of Huawei v. Conversant, the supreme people's court (SPC) of China demonstrated ingenuity by applying the act preservation system to issue the country's first ASI. This was done using a “five-factor framework” that considered the fairness and necessity of preservation measures, the parties’ interests, the public interest, and international comity. Chinese courts have subsequently utilized this framework in several cases to issue ASIs with more extensive and varied scopes. This shift indicates China's transition from a passive recipient to an active participant in ASI matters. Nevertheless, it is important to note that China lacks a legal foundation that explicitly permits the use of ASIs, necessitating further clarification regarding their circumstances of application.This article argues that directly applying the act preservation system to the ASI system lacks sufficient justification or may be constrained by the law, thereby granting judges greater discretion. By comparing Chinese ASI with traditional Western ASI, it becomes apparent that the impact of act preservation does not extend to international litigation and is more akin to an “injunction,” restricting the parties’ tort. Consequently, China should adopt a construction model of the act preservation system, incorporating the guiding principles of the ASI system, as well as the supporting appeal and retrial system, into its Civil Procedure Law. Additionally, providing judicial interpretation to elucidate the specific conditions for ASI application would be beneficial. These efforts have the potential to foster the development of a more predictable and stable international patent system. This, in turn, would benefit both patent owners and implementers, promote innovation, and facilitate global economic development.

A Puzzle of Knowledge Spillovers during Patent Litigation

A Puzzle of Knowledge Spillovers during Patent Litigation

University patent litigation in the United States: Do we have a problem?

In an attempt to increase revenues from patenting activities, some universities have started in recent years to pursue “overzealous” strategies to monetize their existing patents, by selling them to the highest bidder and enforcing them in court. In this paper we find quantitative evidence that patent litigation has an adverse effect on university technology transfer activities, reinforcing prior findings by Shane and Somaya (2007). However, we empirically show that universities do not litigate aggressively over patent infringement: not only do they litigate much less than patent assertion entities (PAEs), but we also observe no increase in terms of their propensity to litigate over the last two decades. Nor do we find any evidence of aggressive litigation strategies.

Settled: Patent characteristics and litigation outcomes in the pharmaceutical industry

A pharmaceutical company that seeks to produce a generic version of a brand drug before patent expiration can trigger a Paragraph IV litigation. However, generic and brand companies may avoid litigation through settlement, which sometimes involves payment to the generic company to delay generic entry. This behavior would be problematic if the settlement option was used to protect patents with low social value. This study explores the relationship between Paragraph IV litigation characteristics and the probability of a Paragraph IV settlement. Examining Paragraph IV settlements from 2003 to 2020, we find that the number of patents being litigated and the years of remaining market exclusivity are the strongest predictors of settlement. Moreover, we find no statistically significant relationship between active ingredient patents and settlement. This information may be helpful to regulators intending to promote the goals of the Hatch-Waxman Act.

Motivations for the restructuring of China’s patent court system

Is the evolution of China’s patent litigation courts from a scattered expansion to a shrinking concentration spontaneous or is it a rational construction? Understanding the motivation for the adjustment of China’s patent court system is important for judging whether the system change is appropriate and for choosing the optimal patent litigation system. After addressing the endogeneity between the number of patents and the adjustment of the patent court system using patent incentives as an instrumental variable for the number of patents, responding to the need to protect the growing number of patents appears to be the underlying reason for the expansion of the number of patent courts in China until 2014. The number of patents directly contributed to the growth of the number of patent courts as patent cases proliferated. The downsizing of the patent court after 2014 was, in contrast, a targeted reform initiative in response to the decline in the quality of cases heard due to the increase in the number of patent courts. The adjustment of China’s patent court system thus appears to be the result of rational constructions in response to a changing reality.

Book review: Karine E. Peschard. 2022. Seed Activism: Patent Politics and Litigation in the Global South

Book review: Karine E. Peschard. 2022. Seed Activism: Patent Politics and Litigation in the Global South

특허심판의 임의적 전치주의 채택에 대한 소고

As the world's fourth-largest patent applicant country, the value of intellectual property rights has been emphasized, and disputes are increasing and the relevant legal system is changing. The system for resolving such disputes is based on a two-pronged structure of patent prosecution and patent infringement litigation, in which necessary preemption is largely applied depending on the type of dispute.
 First of all, in the case of patent law, disputes over patent applications and their examination procedures are basically only subject to patent examination by patent judges as a special form of appeal against patent rejection or patent invalidation, and lawsuits against patent revocation decisions or judgments of patent judges are immediately subject to the exclusive jurisdiction of the patent court, which is the highest court, and the judgment of the patent court can be appealed to the Supreme Court, which consists of a two-trial structure.
 On the other hand, on December 1, 2015, Article 24 of the Civil Procedure Act was amended to concentrate the jurisdiction of the first instance court to the district court with jurisdiction over the location of the high court, and to recognize the overlapping jurisdiction of the Seoul Central District Court for suits related to intellectual property rights, including patents. At the same time, on December 1, 2015, Article 28(4) of the Court Organization Act was amended to concentrate the jurisdiction of appellate review of infringement cases decided by the court of first instance to the Patent Court. In other words, the Patent Court has exclusive jurisdiction over appellate review of infringement cases involving patent rights, which were previously handled by the Seoul High Court and 23 other high courts and district court divisions nationwide. This is to improve the professionalism, consistency, and efficiency of the patent courts, enhance the effectiveness of industrial property rights protection such as seekers' patents, and contribute to enhancing national competitiveness through the advancement of the patent litigation system.
 In light of the above changes in the system, it is necessary to conduct a post-legislative evaluation of the feasibility of introducing necessary precedentialism in patent judgment. In particular, as patent review and patent infringement litigation proceed simultaneously, there may be differences in the views of district courts and patent judges in the handling of patent disputes, resulting in delays. If complaints are raised as a result and the need for legislative improvement is emphasized, it is necessary to evaluate the legislation after the fact. In a situation where the protection environment of patent holders has been greatly improved due to the activation of the patent court, it would be desirable to have a discretionary preemption system that allows parties to choose the judgment of the patent appeals board.

Third-Party Patent Litigation Financing in the United States: Do You Know Who is Sitting in Your Courtroom?

The goal of this paper is to present the current landscape of third-party litigation financing in the United States—namely, patent disputes, as well as a brief insight into the litigation funding business. In the last ten years, patent litigation brought by patent trolls has increased, creating a significant problem. First, this paper explains the basic rules of federal civil procedure that relate to deciding which court will hear a patent case. Next, this paper discusses the Nimitz case before the United States District Court for the District of Delaware, which gained publicity due to the non-disclosure of certain facts by Nimitz’s counsel to the court. Finally, the author recognizes problems raised after the Nimitz case in connection to third-party litigation financing.

Patent insurance and innovation trajectory: evidence from patent insurance pilot cities in China

ABSTRACT Patent insurance protects innovation and appropriability by reducing patent litigation costs. However, whether patent insurance promotes incremental or breakthrough innovation has not been solved. Taking China’s patent insurance pilot cities as a quasi-natural experiment, we evaluate how patent insurance influences innovation trajectory using firm-level data from 2008 to 2017. The results show that being located in patent insurance pilot cities promotes incremental innovation. The patent insurance subsidy of the local government positively moderates the effect of patent insurance on incremental innovation. Heterogeneity results show that patent insurance strongly promotes incremental innovation for state-owned enterprises and enterprises with litigation experience. The results are robust and provide policy implications for China’s patent insurance.

Welcome to Waco! The impact of judge shopping on litigation

Abstract We analyze the effect of judge shopping in patent litigation following the appointment of a former patent litigator as the sole district judge assigned to the Waco Division of the US District Court for the Western District of Texas (WDTX). We find that patent enforcers’ ability to select, with certainty, a judge widely regarded as patentee-friendly increased the number of cases filed, especially by non-practicing entities. We show that the increase in litigation was driven by both an influx of cases that would not have been filed but for the judge’s appointment and a geographic reallocation of cases that would have been filed regardless. Overall, judge shopping in the WDTX induced over a 33-month period an increase of around 460 patent cases that otherwise would not have been filed. (JEL: K41, O34).

The Effect of Multimarket Contact on Patent Litigation: Evidence from the Mobile Phone Industry

The Effect of Multimarket Contact on Patent Litigation: Evidence from the Mobile Phone Industry

How Does Court Expertise Affect Court Targeting in Patent Litigation?

How Does Court Expertise Affect Court Targeting in Patent Litigation?

Patent Litigation, Patent Value and the Direction of Innovation: Evidence from China

Patent Litigation, Patent Value and the Direction of Innovation: Evidence from China

Alice v. CLS Bank: Patent Assertion Entities, Litigation, and Startups

Alice v. CLS Bank: Patent Assertion Entities, Litigation, and Startups

Location Choice in Global Patent Litigation: Does the Landscape Matter?

Location Choice in Global Patent Litigation: Does the Landscape Matter?

The Role of Judges’ Political Ideology in Facilitating Patent Litigation Settlement

The Role of Judges’ Political Ideology in Facilitating Patent Litigation Settlement

The Effects of Foreign Patent Litigation on Firms’ Patent Strategies

The Effects of Foreign Patent Litigation on Firms’ Patent Strategies