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Lex Machina Patent LitigationYear in Review 2015
by Brian C. Howard J.D./M.ALegal Data Scientist & Director of Analytics Services
and Jason Maples J.D./LL.M.Legal Data Expert
Published March 2016
Lex Machina – Patent Litigation Year in Review 2015 i
Executive Summary
Lex Machina’s third annual Patent Litigation Year in Review examines
the key trends in the legal landscape of 2015 and places them in the
context of recent years, showcasing the value of Legal Analytics® in
informing business and strategic decisions about litigation.
Th is report provides insight into the quantitative aspects of patent
litigation. Practitioners can fi nd data to give them an edge at all
stages of a case: from top parties and fi rms for business development
or outside counsel selection, to jurisdictional analysis, the timing of
key case events, the likelihood of winning invalidity or infringement
fi ndings, all the way to data on damages. Regardless of which side of a
complaint (or retainer agreement) one fi nds oneself, understanding the
data behind the business of patent litigation has become indispensable to
assessing strategic opportunities and risk, and to budgeting accordingly.
Th is report examines the key axes of legal data and their interactions,
drawing upon Lex Machina’s platform that combines data from PACER,
the Patent Trial and Appeal Board (PTAB), the U.S. International Trade
Commission (ITC) , the U.S. Food and Drug Administration (FDA)
Orange Book on Abbreviated New Drug Applications (ANDAs), and
more.
Key trends and highlights from 2015 include:
Filing Trends:
• 5,819 patent cases were fi led in 2015 - a 15% rise from 2014 but not
more than were fi led in 2013.
• November 2015 set a record for most patent cases fi led in a month at
845, but the 281 cases fi led in December 2015 constitute a low not seen
since 2011.
• 43.7% of patent cases fi led in 2015 were fi led in the Eastern District of
Texas (2,540 cases).
Lex Machina’s 2015 Patent Litigation Year in Review surveys and summarizes the key trends that have emerged over the last year.
Based on the same data driving Lex Machina’s platform, this report exam-ines fi ling trends, case timing, motions, judges, top law fi rms, patent trends, parties and damages to showcase the power of Legal Analytics .
Lex Machina – Patent Litigation Year in Review 2015 63ii
Case Timing
• Both Central and Northern Districts of California saw faster median times to claim construction (about a year) than any of the Eastern District of Texas, the District of Delaware, or the national average (all a year and a half).
Motion Metrics
• The Eastern District of Texas, the District of Delaware, and the Northern District of California all had similar grant rates of around two out of three, while the Central District of California exhibited a higher rate of motion denial (a pattern seen last year as well).
Design Patent and ANDA Litigation
• Design patent and ANDA case filings remain much more constant than patent litigation generally.
• Design patent litigation is concentrated in the Central District of California, while ANDA cases are concentrated in the District of New Jersey and the District of Delaware.
Judges
• Judge Gilstrap (E.D.Tex.), responsible for 80% patent cases filed in Marshall during much of 2015, received an incredible 1686 new cases in 2015.
• Judge Andrews (D. Del.) led for the most merits decisions, followed by Judges Robinson (D.Del.) and Stark (D.Del.) whose many decisions were in related cases.
Parties
• The parties filing the most patent lawsuits in 2015 are all patent monetization entities (PMEs). eDekka remains the most litigious party for the second year in a row.
• Samsung has overtaken Apple as the most-sued patent defendant in 2015.
Law Firms
• The Austin Hansley firm filed an astonishing 425 cases, representing such plaintiffs as eDekka LLC, Olivistar LLC, Wetro LAN LLC, and Data Carriers LLC and making it the top plaintiff-side law firm in Texas (as well as nationally) by cases filed in 2015.
Patents and Patent Findings
• Findings of infringement tend to come from either trial or from consent judgment, while findings of non-infringement or invalidity are as likely as not to have come from summary judgment.
Lex Machina – Patent Litigation Year in Review 2015 iii
Remedies and Case Resolutions
• The median time for a preliminary injunction is 3.7 months, and for permanent injunction is 10.6 months.
• Comparing cases terminating in 2015 with those from 2009-2014, more cases are settling in 2015 (76.1%) than before (73.2%), and claim defendants are winning more often (4.2% to 3.7% in 2015, contrasted with 4.3% to 6.9% in 2009-2014)
Damages
• Compensatory damages continue to be awarded in few cases, around 1.8% of the terminated cases filed since the year 2000.
• 2015 saw the award of approximately $750m total in compensatory damages.
• Of damages granted since 2000, juries have granted about seven times more than judges ($15 billion versus $1.9 billion).
This report illustrates the impact that Legal Analytics can have on key aspects of the business and practice of patent law in generalized way. The full power of Legal Analytics is revealed, though, when users engage with the platform, tailoring their analysis to produce the tactical or strategic insights particular to their circumstance. When users have the ability to “twist the dials,” the results provide a competitive advantage in landing clients, winning cases, and closing deals by making data-driven decisions.
Lex Machina – Patent Litigation Year in Review 2015 63iv
Table of Contents
Lex Machina’s Data, Methodology, and Terminology vii
Overview
Figure 1: New cases filed, 2007-2015, by year 1Figure 2: New cases filed, 2015, by month 1Figure 3: New cases filed, 2007-2015, by month 2Figure 4: New cases filed, 2015 vs 2013, by month, cumulative 3Figure 5: Defendant-case pairs, 2008-2015, by month 3
U.S. District Courts
Top Districts
Figure 6: New cases in 2015, by district 5Figure 7: New cases pie, 2015, by district 5Figure 8: Net increase (left) and decrease (right) in new cases filed in 2015 6Figure 9: New cases, 2007-2015, by year 6Figure 10: New cases in D. Del. and E.D.Tex., by year and plaintiff volume class 7
Timing and Motions in Top Districts and Nationally
Figure 11: For top districts, cases filed 2005-2015 and reaching a claim construction hearing in 2012-2015 8
Figure 12: For top districts, timing by cases filed 2005-2015 and reaching a claim construction hearing in 2012-2015 8
Figure 13: For top districts, cases filed 2005-2015 and reaching trial in 2012-2015 9Figure 14: For top districts, timing by cases filed 2005-2015 and reaching trial in 2012-2015 9Figure 15: For top districts, timing and success of motions to transfer decided in 2015 10Figure 16: Top districts, age of litigated patents, 2009-2015, by year 11Figure 17: National, age of litigated patents, 2009-2015, by year 11
Design Patent Litigation
Figure 18: Asserted patents, by design (orange) or utility (blue), by quarter, 2007-2015 12Figure 19: Top districts, by new cases including one or more design patents, 2007-2015 (and
showing percentage change from 2014) 12
ANDA Litgation
Figure 20: New ANDA cases, by year, 2007-2015 13Figure 21: New ANDA cases, by month, 2013-2015 13Figure 22: Top districts, by new ANDA cases filed, 2009-2015 14Figure 23: Top districts, by new ANDA cases filed in 2015 (and percentage change from 2014) 14
Judges
Figure 24: Top judges, by new cases filed in 2015 15Figure 25: Top judges, by cases reaching decisions on patent infringement, validity, or enforce-
Lex Machina – Patent Litigation Year in Review 2015 v
ability in 2015 15Figure 26: Top judges, by cases having summary judgment on patent infringement, validity, or
enforceability (showing judges having 4 or more) in 2015 16
Parties
Figure 27: Top plaintiffs, by new cases in 2015 17Figure 28: Top defendants, by new cases in 2015 17
Law Firms
Figure 29: National law firms, by cases filed in 2015 representing plaintiffs 18Figure 30: National law firms, by cases filed in 2015 representing defendants 19Figure 31: Texas law firms, by cases filed in 2015 19Figure 32: Delaware law firms, by cases filed in 2015 19
Patents and Patent Findings
Figure 33: Most frequently asserted patents in 2015 20Figure 34: Titles of most frequently asserted patents 20Figure 35: Patent judgment types by finding, for findings in 2015 21Figure 36: Patent findings by judgment types, for findings in 2015 22Figure 37: Patents invalidated, 2013-2015, under 35 U.S.C. § 101 for lack of patentable subject
matter, by quarter 23Figure 38: Patents invalidated, 2013-2015, by basis 23Figure 39: Median patent age, by district (top 20 districts by cases filed in 2015) 24
Remedy Timing and Case Resolutions
Figure 40: Total granted patent remedies, in cases filed 2005-2015, reaching remedy in 2012-2015 25
Figure 41: Time to granted injunction, in cases filed 2005-2015, reaching remedy in 2012-2015 25
Figure 42: Case resolutions, in cases terminating 2009-2015 26Figure 43: Case resolutions, in cases terminating in 2015 26
Damages
Figure 44: Cases, 2000-2015, with damages 27Figure 45: Damages awarded in cases filed 2000-2015, by type 27Figure 46: Total damages awarded during 2015 in cases filed 2000-2015, by type 27Figure 47: Median damages, 2000-2015, by year and type 28Figure 48: Damages percentiles, 2000-2015, by type 28Figure 49: Damages by judgment type, awarded 2000-2015 29Figure 50: Districts by ratio of compensatory damages awarded (in 2005-2015) to cases filed (in
2005-2015) 29Figure 51: Median damages, 2000-2015, by year and type 30
Lex Machina – Patent Litigation Year in Review 2015 63vi
PTAB
Figure 52: Petitions filed, 2012-2015, by month 31Figure 53: Trial Flow, PTAB IPR petitions, filed and terminated 2012 - 2015 31
ITC
Figure 54: ITC investigations filed, 2007-2015 32Figure 55: ITC dispositive outcomes, by current ALJ, investigations noticed and terminating
2007-2015 32
Using Boxplots to Understand Timing 33
Lex Machina – Patent Litigation Year in Review 2015 vii
Lex Machina’s Data, Methodology, and TerminologyThis report draws on data from Lex Machina’s proprietary intellectual property litigation database. Although some of our data is derived from litigation information publicly available from PACER (federal court system), EDIS (the ITC system), or the PTAB website, Lex Machina applies additional layers of intelligence to bring consistency to, and ensure the completeness of, the data. Beyond the automation, key areas of Lex Machina’s data are either human-reviewed or hand-coded by a dedicated team of attorneys to ensure accuracy. This report analyzes trends in patent litigation. To determine whether a case is a patent case, others may blindly trust the Cause-of-Action (CoA) and Nature- of-Suit (NoS) codes entered in PACER. But Lex Machina actively analyzes complaints to ensure that patent cases filed under mistaken CoA/NoS codes (or a CoA/NoS code corresponding to a different claim, e.g. contract in a combined patent/contract case) are not missed. This same system also allows Lex Machina to filter out the many spurious cases that have no claim of patent infringement despite bearing a patent CoA/NoS code (e.g. false marking cases). Moreover, due to inherent design limitations, PACER often shows inaccurate or corrupted information for older terminated cases. For example, when a lawyer leaves one firm for another, PACER may show closed cases that the lawyer worked on at the old firm as having been handled by the new firm. When combined with law firm splits, acquisitions, and mergers, these inaccuracies accumulate to render PACER data less reliable for older cases. Lex Machina, however, has a historic record going back to the first days of electronic filing on PACER (and other data going back even further). These snapshots, unique to Lex Machina, give us access to normalized contemporary data and enable us to provide more accurate data for older cases than someone using PACER today. Lex Machina’s data is focused on the lower courts (District Courts, PTAB, and ITC) and does not include appeals or modifications of judgments on appeal.
What is an ANDA case? The sale of new drugs in the United States is regulated by the Food and Drug Administration (FDA). Pharmaceutical companies launching new, branded drugs must file NDAs (New Drug Applications). The FDA also approves applications for new generic drugs, and makers may file abbreviated applications, either an ANDA or paper NDA (hybrid of a full NDA and an ANDA, also known as a “Section 505(b) (2)” application).
These abbreviated applications assert that the generic is a duplicate of a branded drug (ANDA) or differs from a branded drug but meets safety and efficacy standards based on published studies (paper NDA). Although ANDA and paper NDA cases differ in some important respects, this report considers them together as “ANDA cases” as they represent less than 3% of Hatch-Waxman litigation. The Hatch-Waxman Act put in place the expedited approval processes for generics and in doing so launched a new type of patent litigation — cases with accused infringing products that are not yet on the market or even approved by the FDA at the time the lawsuit is filed. These cases are often tried by a judge and the generic maker frequently stipulates to infringement. The remedies sought often include injunctions with specific date bounds. Lex Machina identifies as ANDA cases those patent infringement cases prompted by the filing of an ANDA or paper NDA by a prospective generic maker. This definition, however, does not include cases involving investigational new drugs, over-the-counter drugs or any process or product not requiring FDA approval, therapeutic biologic applications (biosimilars), or generics authorized by the branded drug maker.
Lex Machina – Patent Litigation Year in Review 20151
Overview
Figure 1: New cases filed, 2007-2015, by year
Note: All charts reflect patent litigation in the U.S. District Courts except where otherwise stated.
2007 2008 2009 2010 2011 2012 2013 2014 20150
1,000
2,000
3,000
4,000
5,000
6,000
Cas
es fi
led
3,575
6,113
5,070
5,819
2,7762,770
5,455
2,5472,574
Figure 2: New cases filed, 2015, by month
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov DecMonth
0
100
200
300
400
500
600
700
800
Cas
es fi
led
845
469
509 518
444444
396
281
610
311
657
335
Lex Machina – Patent Litigation Year in Review 2015 2
In 2015, 5,819 patent cases were filed - a 15% rise from 2014. However, the 2015 total does not exceed the record year of 2013 when 6,113 patent cases were filed.
Cases were filed unevenly throughout the 2015. The hottest month was November, when 845 new cases were filed - a new record month. In particular, there was a spike in case filings on November 30, 2015, corresponding to a rule change that eliminates Form 18, the form often used to plead direct infringement claims in patent cases. On that day, 259 patent cases were filed - a single-day record.
However, there is a large gap between November and the slowest months, which saw far fewer new cases filed: April (396), September (311), October (335), and December (281). December was unusually low - per month case filings have not dropped below 300 since mid-2011. As Figure 4 (next page) shows, monthly filings in 2015 tracked 2013 very closely during the first half, but diverged during the slow months of the second half.
Figure 3: New cases filed, 2007-2015, by month
2007 2008 2009 2010 2011 2012 2013 2014 2015 2016Month
0
100
200
300
400
500
600
700
800
Cas
es fi
led
845
684
469
509518
444444423
416 404444448
396
463
389
305306307
435
282
518500 520
405
321
281
494
568
488
171
400
610
196
602
343
232
269
483
406406
203
424
170
224
391
215
508
242
213
355
232
210
546
211 234
170
251
344
172
206206
283
222214
341
238255
213246
506
221
311
554
226
579
657
200
336
243228
218
335276
521
255
335
197
247
203
537
240 251
529
367
199238265
Lex Machina – Patent Litigation Year in Review 20153
Figure 4: New cases filed, 2015 vs 2013, by month, cumulative
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov DecMonth
0
1,000
2,000
3,000
4,000
5,000
6,000
Cas
es fi
led
657 488
416
469
423
518
500
389
311
335444494
424
281
404
335
444
602
845
554
448
579
336
396
546
444 341
344
518
520
506
Year201320142015
Figure 5: Defendant-case pairs, 2008-2015, by month
Lex Machina – Patent Litigation Year in Review 2015 4
The America Invents Act (AIA), which became effective in September 2011, limited the number of defendants a plaintiff could sue in a single case. These anti-joinder provisions make case filing rates from before its enactment in 2011 incomparable with those from afterwards. For example, the AIA’s restriction on suing multiple defendants in the same case means that a plaintiff would have to file more patent cases in 2015 than it would have in 2010 to sue the same number of defendants. In order to understand the increase in litigation and what happens afterwards, it helps to count litigation in a way that is not affected by the AIA’s change of rules, such as counting each defendant in a case separately (counting defendant-case pairs).
Measured by defendant-case pairs, the AIA did not dramatically reduce patent case filings, as the quarters from late 2011 to mid 2013 follow a trajectory consistent with those from 2009 to early 2011. This data also shows that litigation dropped in the last half of 2014 to a level more commensurate with 2009 and 2010 than the raw case filings alone would suggest. In 2015, the first few months remained consistent, but the second half set both highs and lows not seen in recent years.
The dramatic spike seen above corresponds to the large number of cases filed in a small number of days against numerous defendants; this influx included plaintiffs eDekka and Olivistar (discussed below) and coincided with the cut-off date in a circulated piece of proposed reform legislation affecting the ability to recover attorneys fees.
Lex Machina – Patent Litigation Year in Review 20155
U.S. District Courts
Figure 6: New cases in 2015, by district
E.D.Tex. D.Del. C.D.Cal. D.N.J. N.D.Cal. N.D.Ill. S.D.N.Y. S.D.Fla. S.D.Cal. D.Mass.
0
500
1000
1500
2000
2500
Cas
es fi
led
in 2
015
-0.5
0.0
0.5
% c
hang
e fro
m 2
014
2,541
545
298 228 156162 132271
80 72
-42.4%
-10.8% -11.3%
78.1%
30.0%18.9%
35.8%
-4.9%
3.8% 6.7%
Figure 7: New cases pie, 2015, by district
297 cases5.1%
C.D.Cal.545 cases
9.4%D.Del.
2,437 cases41.9%
Other districts
2,540 cases43.7%
E.D.Tex.
Top Districts
Lex Machina – Patent Litigation Year in Review 2015 6
Patent litigation is very unevenly distributed between the districts.
The Eastern District of Texas continues to lead the nation by number of new cases filed in 2015 - 1,427 cases were filed there in 2015, representing a 78% increase over the district’s 2014 total (the largest percentage gain of any district over last year).
The Eastern District of Texas saw 43.7% of the cases filed in 2015. For comparison, Delaware, the next most popular district, saw less than 10%. The Eastern District share is more than the combined totals for all districts other than the top 3 (E.D.Tex., D.Del., and C.D.Cal.).
New case filings in the District of Delaware, historically the second top district, declined in 2015 by an alarming 42.4% - the largest percentage decrease over last year.
Figure 8: Net increase (left) and decrease (right) in new cases filed in 2015
0 200 400 600 800 1000 1200 1400Increase in new cases, 2014-2015
E.D.Tex.
N.D.Tex.
S.D.N.Y.
D.Colo.
M.D.Pa.
S.D.Fla.
D.Mass.
E.D.Pa.
W.D.Tex.
E.D.N.C.
1,113 cases78.0%
53 cases84.1%
36 cases30.0%
21 cases65.6%
20 cases400.0%
20 cases18.0%
19 cases35.8%
19 cases146.2%
19 cases35.8%
16 cases145.5%
-500 -400 -300 -200 -100 0Decrease in new cases, 2014-2015
D.Del.
C.D.Cal.
E.D.Va.
E.D.Mich.
N.D.Cal.
N.D.Ohio
E.D.Cal.
M.D.Fla.
D.N.J.
S.D.Ind.
-401 cases-42.4%
-37 cases-11.1%
-34 cases-39.5%
-32 cases-39.5%
-29 cases-11.3%
-22 cases-36.7%
-19 cases-82.6%
-19 cases-21.1%
-14 cases-4.9%
-13 cases-52.0%
Figure 9: New cases, 2007-2015, by year
2007 2008 2009 2010 2011 2012 2013 2014 20150
500
1000
1500
2000
2500
Cas
es fi
led
E.D.Tex.
D.Del.
C.D.Cal.
N.D.Ill.
DistrictC.D.Cal.D.Del.D.N.J.E.D.Tex.N.D.Cal.N.D.Ill.
Lex Machina – Patent Litigation Year in Review 20157
Timing and Motions in Top Districts and Nationally
Lex Machina’s timing analytics can help companies and counsel alike by providing data with which to make key decisions about strategy and budgeting.
For example, litigants in both Central and Northern Districts of California can budget less time and money on claim construction, as those districts saw faster median times to claim construction (about a year) than any of the Eastern District of Texas, the District of Delaware, or the national average (all a year and a half).
However, when it comes to trials, Delaware and Eastern Texas offer less variability - 75% of trials in both districts occur several months before the same can be said of either California districts. Of the districts, Central California shows the most variability, more so than the national average, making it less predictable and more difficult to budget for.
Figure 10: New cases in D. Del. and E.D.Tex., by year and plaintiff volume class
2012 Q2 2012 Q4 2013 Q2 2013 Q4 2014 Q2 2014 Q4 2015 Q2 2015 Q4Quarter / Year
E.D.Tex.
D.Del.
0
100
200
300
400
500
600
700
Paten
t cas
es fil
ed
0
100
200
300
400
500
600
700
Paten
t cas
es fil
ed
692 cases
307 cases
318 cases
277 cases
351 cases
261 cases 259 cases
548 cases
231 cases208 cases
208 cases
419 cases421 cases
130 cases
170 cases193 cases
102 cases 98 cases
116 cases
55 cases
95 cases
93 cases92 cases124 cases
124 cases 126 cases147 cases174 cases
85 cases68 cases
140 cases
76 cases
313 cases
124 cases
134 cases
272 cases
96 cases
95 cases86 cases82 cases
168 cases
74 cases 66 cases
184 cases
75 cases
25 cases
111 cases
191 cases119 cases 107 cases106 cases
124 cases145 cases
144 cases86 cases 48 cases
130 cases
98 cases96 cases
95 cases 42 cases
Plaintiff classificationHigh volumeLow volume
Lex Machina – Patent Litigation Year in Review 2015 8
Figure 11: For top districts, cases filed 2005-2015 and reaching a claim construction hearing in 2012-2015
District
National E.D.Tex. D.Del. C.D.Cal. N.D.Cal.0
500
1000
1500
2000
Cas
es re
achi
ng cl
aim
con
stru
ctio
n
1,945
327420
122192
Figure 12: For top districts, timing by cases filed 2005-2015 and reaching a claim construction hearing in 2012-2015District
National E.D.Tex. D.Del. C.D.Cal. N.D.Cal.0.0
0.5
1.0
1.5
2.0
2.5
3.0
3.5
4.0
4.5
Tim
e to
cla
im c
onst
ruct
ion
hear
ing
/ yea
rs
1.0
1.5
2.2
1.0
1.3
1.8
1.2
1.5
2.0
0.91.0
1.3
0.9
1.2
1.6
Lex Machina – Patent Litigation Year in Review 20159
Figure 13: For top districts, cases filed 2005-2015 and reaching trial in 2012-2015
District
National E.D.Tex. D.Del. C.D.Cal. N.D.Cal.0
100
200
300
400
500
Cas
es re
achi
ng tr
ial
478
23 34
7291
Figure 14: For top districts, timing by cases filed 2005-2015 and reaching trial in 2012-2015District
National E.D.Tex. D.Del. C.D.Cal. N.D.Cal.0
1
2
3
4
5
6
Tim
e to
tria
l
1.8
2.4
3.3
1.7
2.2
2.7
1.92.2
2.7
1.5
2.1
3.7
1.8
2.2
3.0
Lex Machina – Patent Litigation Year in Review 2015 10
Figure 15: For top districts, timing and success of motions to transfer decided in 2015National E.D.Tex. D.Del. C.D.Cal. N.D.Cal.
grant deny partial grant deny partial grant deny grant deny grant deny
0%
10%
20%
30%
40%
50%
60%
70%
Mot
ions
to tr
ansf
er
0
100
200
300
400
500
Avg
time
to d
ecis
ion
188 orders59.68%
119 orders37.78%
8 orders2.54%
23 orders67.65%
10 orders29.41%
1 orders2.94%
17 orders65.38%
9 orders34.62%
13 orders52.00% 12 orders
48.00%
21 orders70.00%
9 orders30.00%
259.1 days241.3 days
161.3 days
490.8 days
340.0 days
240.0 days 242.5 days
296.6 days
219.0 days
162.5 days
243.2 days216.1 days
Lex Machina’s platform allows users to track and analyze other types of motions, including motions to dismiss, motions to stay, and summary judgment motions. When considering the expense of filing a transfer motion, companies and litigators should know the differing likelihood of winning the motion - which turns out to differ greatly depending on the district.
Of motions decided in 2015, the Eastern District of Texas, the District of Delaware, and the Northern District of California all had similar grant rates of around 2/3, while the Central District of California exhibited a higher rate of motion denial (a pattern seen last year as well).
Budgeting can also be affected by timing - the Northern and Central Districts of California, for example, were faster to decide on motions than either Eastern Texas or Delaware. Texas decision times were lopsided, taking more than twice as long for grants than denials - an important fact to know for budgeting and planning.
Note: decisions by magistrate judges not included.
Lex Machina – Patent Litigation Year in Review 201511
Figure 16: Top districts, age of litigated patents, 2009-2015, by year
2009 2010 2011 2012 2013 2014 2015
E.D.Tex.
D.Del.
C.D.Cal.
N.D.Cal.
0
5
10
Med
ian
pate
nt a
ge(y
ears
)
0
5
10
Med
ian
pate
nt a
ge(y
ears
)
0
5
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Med
ian
pate
nt a
ge(y
ears
)
0
5
10
Med
ian
pate
nt a
ge(y
ears
)
11 years 184 days11 years 83 days
8 years 363 days
12 years 17 days 13 years 204 days12 years 126 days
10 years 103 days
10 years 179 days10 years 156 days
8 years 211 days10 years 6 days
11 years 72 days
11 years 125 days11 years 348 days
12 years 134 days
9 years 236 days 9 years 228 days
9 years 346 days
9 years 91 days8 years 245 days8 years 118 days
9 years 296 days10 years 305 days 9 years 354 days10 years 0 days
9 years 129 days9 years 4 days 9 years 96 days
The age of litigated patents - the amount of time between the filing of a patent at the PTO, and the first suit alleging its infringement - provides insight into the changing caseload of the district courts and its effect on innovation.
The Eastern District of Texas saw the median age of its litigated patents rise dramatically by more than 4 years between 2009 and 2014, although, 2015 represents a significant drop. Delaware’s median patent age declined as well, remaining significantly below the Eastern District of Texas and the national average.
Figure 17: National, age of litigated patents, 2009-2015, by year
2009 2010 2011 2012 2013 2014 20150
5
10
Med
ian
pate
nt a
ge (y
ears
)
9 years 243 days
9 years 350 days 9 years 364 days
8 years 313 days10 years 12 days
10 years 210 days
9 years 75 days
Lex Machina – Patent Litigation Year in Review 2015 12
Design Patent Litigation
Figure 18: Asserted patents, by design (orange) or utility (blue), by quarter, 2007-2015
2007 Q3 2008 Q3 2009 Q3 2010 Q3 2011 Q3 2012 Q3 2013 Q3 2014 Q3 2015 Q3Quarter/ Year
0
200
400
600
800
1000
1200
1400
1600
# of
pat
ents
ass
erte
d
1,305
972
1,323
1,2821,325
1,624
1,260
1,350
1,251
1,596
1,246
1,592
1,033
1,382
1,2211,220
1,386
1,218
1,052
1,403 1,4061,540
1,532 1,529
1,078
1,428
1,177
1,436 1,437
1,153
1,1061,145 1,140
1,136 1,131
1,477
171
109
110113
102
115116
116 14399
9898 75
119 141
97120
120120
77 9594
123123 137
9380
124
81 818389 85
129
86
130
Design PatentsUtility Patents
Figure 19: Top districts, by new cases including one or more design patents, 2007-2015 (and showing percentage change from 2014)
0 5 10 15 20 25 30 35 40 45 50 55 60 65 70Cases filed in 2015
C.D.Cal.
S.D.N.Y.
S.D.Cal.
E.D.Tex.
N.D.Cal.
S.D.Fla.
D.Mass.
N.D.Ga.
N.D.Ill.
D.Minn.
61 cases-14.1%
24 cases166.7%
14 cases-6.7%
12 cases200.0%
12 cases71.4%
11 cases120.0%
10 cases150.0%
10 cases900.0%
9 cases-10.0%
8 cases33.3%
Although they comprise a small fraction of the litigated patents, design patent litigation is far more consistent than utility patent litigation.
Design patent litigation remains highly concentrated in the Central District of California, although that district saw its total decline 14.1% over 2014. The Southern District of New York, still in a distant second place, saw its share increase by 166%.
Lex Machina – Patent Litigation Year in Review 201513
ANDA Litgation
Figure 20: New ANDA cases, by year, 2007-2015
2009 2010 2011 2012 2013 2014 20150
50
100
150
200
250
300
350
400
450
AND
A ca
ses f
iled 294293
466
263260
434
236
Figure 21: New ANDA cases, by month, 2013-2015
December 2012 June 2013 December 2013 June 2014 December 2014 June 2015 December 2015Quarter / Year
0
10
20
30
40
50
60
70
AND
A ca
ses f
iled
67
61
32
32
59
34
34
30
30 35
29
36
2�
37
10
3�3�
11
39
53
2525
25
25 24
24
24
14
50
22
49
20
47
1919
1�
Lex Machina also enables users to track and analyze ANDA litigation. ANDA (Abbreviated New Drug Application) cases are related to the filing of these drug applications at the FDA. The Hatch-Waxman Act provides a streamlined process with specific timelines for litigation triggered by the application process.
ANDA cases have continued rising from 2014 into 2015. ANDA litigation is heavily concentrated in the Districts of New Jersey and Delaware.
Stay tuned for the upcoming Lex Machina Hatch-Waxman Report in April!
Lex Machina – Patent Litigation Year in Review 2015 14
Figure 22: Top districts, by new ANDA cases filed, 2009-2015
0 100 200 300 400 500 600 700 800 900 1000ANDA cases filed
D.Del.
D.N.J.
Districts other than topten (combined)
S.D.N.Y.
N.D.W.Va.
N.D.Ill.
S.D.Ind.
D.Md.
E.D.Tex.
S.D.Fla.
D.Nev.
909 cases
725 cases
188 cases
158 cases
51 cases
47 cases
44 cases
37 cases
30 cases
30 cases
27 cases
Figure 23: Top districts, by new ANDA cases filed in 2015 (and percentage change from 2014)
0 20 40 60 80 100 120 140 160 180 200 220total 2015
D.N.J.
D.Del.
N.D.W.Va.
N.D.Ill.
E.D.Tex.
S.D.N.Y.
D.Md.
S.D.Ind.
S.D.Fla.
E.D.Pa.
196 cases34.2%
186 cases-8.4%
21 cases90.9%
8 cases33.3%
7 cases40.0%
7 cases-63.2%
6 cases500.0%
6 cases-45.5%
5 cases66.7%
4 cases100.0%
Lex Machina – Patent Litigation Year in Review 201515
Figure 24: Top judges, by new cases filed in 2015
Figure 25: Top judges, by cases reaching decisions on patent infringement, validity, or enforceability in 2015
Judges
The Districts of Delaware and Eastern Texas dominate the list of top judges by cases filed.
Judge Gilstrap, responsible for 80% patent cases filed in Marshall during much of 2015, received an incredible 1686 new cases in 2015.
Judge Andrews (D. Del.) led for the most merits decisions, after Judges Robinson (D.Del.) and Stark (D.Del.) whose many decisions were in related cases. These judges also led by summary judgment decisions in 2015.
Note: Judge Gilstrap’s large caseload comes, in large part, from his being assigned 80% of the patent cases filed during 2015 in the Marshall Division (as well as 20% of cases filed in Texarkana and 30% of those field in Tyler). See, e.g., http://www.txed.uscourts.gov/cgi-bin/view_document.cgi?document=24811. Also, some of Judge Gilstrap’s cases were later transferred away from him by general order (see, e.g., http://www.txed.uscourts.gov/cgi-bin/view_document.cgi?document=25005).
Rank Judge District Cases1 Rodney Gilstrap E.D.Tex. 16862 Robert Schroeder E.D.Tex. 8433 Richard Andrews D.Del. 1884 Gregory Sleet D.Del. 1275 Leonard Stark D.Del. 1256 Sue Robinson D.Del. 1097 Barbara Lynn N.D.Tex. 588 David Godbey N.D.Tex. 559 James Selna C.D.Cal. 4910 James Donato N.D.Cal. 39
Rank Judge District Cases1 Richard Andrews D.Del. 342 Sue Robinson D.Del. 263 Leonard Stark D.Del. 264 Rodney Gilstrap E.D.Tex. 205 Gregory Sleet D.Del. 186 Robert Schroeder E.D.Tex. 116 Leonard Davis E.D.Tex. 118 Phyllis Hamilton N.D.Cal. 109 Michael Schneider E.D.Tex. 99 Thomas Griesa S.D.N.Y. 9
Lex Machina – Patent Litigation Year in Review 2015 16
Figure 26: Top judges, by cases having summary judgment on patent infringement, validity, or enforceability (showing judges having 4 or more) in 2015
Rank Judge District Cases1 Richard Andrews D.Del. 132 Sue Robinson D.Del. 123 Leonard Stark D.Del. 114 Phyllis Hamilton N.D.Cal. 95 Robert Schroeder E.D.Tex. 76 Andrew Guilford C.D.Cal. 66 Leonard Davis E.D.Tex. 68 Cathy Bencivengo S.D.Cal. 59 Edward Davila N.D.Cal. 49 Rodney Gilstrap E.D.Tex. 4
Lex Machina – Patent Litigation Year in Review 201517
Parties
The parties filing the most patent lawsuits in 2015 are all patent monetization entities (PMEs). eDekka remains the most litigious party for the second year in a row.
Samsung has overtaken Apple as the most-sued patent defendant in 2015. The appearance of pharmaceutical companies among the top defendants in 2014 continues; the top defendants this year include Mylan, Actavis, Amneal and Apotex.
Figure 27: Top plaintiffs, by new cases in 2015
0 10 20 30 40 50 60 70 80 90 100 110 120Cases filed
EDEKKA LLC
DATA CARRIERS LLC
CRYPTOPEAK SOLUTIONS LLC
SHIPPING AND TRANSIT LLC
ROTHSCHILD CONNECTED DEVICESINNOVATIONSLLC
HAWK TECHNOLOGY SYSTEMS LLC
WETRO LAN LLC
GENAVILLE LLC
LORAMAX LLC
OBERALIS LLC
CHRIMAR HOLDING COMPANY LLC
SOCKEYE LICENSING TX LLC
101 cases
85 cases
66 cases
65 cases
58 cases
57 cases
55 cases
50 cases
50 cases
50 cases
45 cases
45 cases
Figure 28: Top defendants, by new cases in 2015
0 10 20 30 40 50 60 70Cases as defendant
SAMSUNG ELECTRONICS AMERICA INC
APPLE INC
MYLAN PHARMACEUTICALS INC
AMAZONCOM INC
ACTAVIS INC
HEWLETT-PACKARD COMPANY
LG ELECTRONICS INC
AMNEAL PHARMACEUTICALS LLC
APOTEX CORP
DELL INC
HTC AMERICA INC
64 cases
57 cases
50 cases
47 cases
36 cases
36 cases
36 cases
34 cases
33 cases
33 cases
33 cases
Lex Machina – Patent Litigation Year in Review 2015 18
Law Firms
To provide better insight, this report considers law firms based primarily in Texas or Delaware separately from large national or international firms and boutiques with national reach (described below as “national”).
Among the top national law firms, McCarter English represented plaintiffs in the most cases filed in 2015 (121 cases). Cotman IP Law Group, a firm based in LA came in second with 74 cases, followed by Finnegan with 71 cases.
On the defense side, Fish & Richardson had a dominating lead in 2015, representing defendants in 287 new cases. Following Fish & Richardson, DLA Piper represented defendants in 88 cases and Winston Strawn in 80 cases.
In Texas, the Austin Hansley firm filed an astonishing 425 cases, representing such plaintiffs as eDekka LLC, Olivistar LLC, Wetro LAN LLC, and Data Carriers LLC.
Among Delaware firms, Morris, Nichols, Arsht, and Tunnell leads with 251 cases, followed by Stamoulis Weinblatt (161 cases) and Potter Minton (158 cases).
Figure 29: National law firms, by cases filed in 2015 representing plaintiffs
0 20 40 60 80 100 120 140Cases
McCarter & EnglishCotman IP Law Group
Finnegan, Henderson, Farabow, Garrett & DunnerRuss August & Kabat
Paul HastingsSaul Ewing
The Davis FirmFitzpatrick, Cella, Harper & Scinto
Quinn Emanuel Urquhart & SullivanWilmerHale
Siprut
121 cases74 cases
71 cases66 cases
55 cases55 cases54 cases
51 cases50 cases
47 cases45 cases
Lex Machina – Patent Litigation Year in Review 201519
Figure 30: National law firms, by cases filed in 2015 representing defendants
0 50 100 150 200 250 300 350Cases
Fish & RichardsonDLA Piper
Winston & StrawnPerkins Coie
Alston & BirdCooley
Baker BottsMorgan Lewis & Bockius
Duane MorrisWilson Sonsini Goodrich & Rosati
287 cases88 cases
80 cases68 cases
64 cases57 cases55 cases
52 cases51 cases51 cases
Figure 31: Texas law firms, by cases filed in 2015
0 50 100 150 200 250 300 350 400 450Cases
Austin HansleyTadlock Law Firm
Gillam & SmithSpangler Law
Capshaw DeRieux
425
179168
277207
Figure 32: Delaware law firms, by cases filed in 2015
0 50 100 150 200 250Cases
Morris, Nichols, Arsht & TunnellStamoulis & Weinblatt
Potter MintonFarnanBayard
158113
251161
73
Lex Machina – Patent Litigation Year in Review 2015 20
Figure 33: Most frequently asserted patents in 2015
Patents and Patent Findings
Figure 34: Titles of most frequently asserted patents
Note: Excludes declaratory judgment cases.
Note: Excludes declaratory judgment cases.
Rank Patent Cases Original assignee or inventor(s) Plaintiff1 6266674 101 eDekka LLC2 5388198 85 Symantec Corp. Data Carriers LLC3 7400970 79 Melvino Technologies
Ltd.ArrivalStar SA, Melvino Technologies Ltd.
4 6202150 66 CryptoPeak Solutions, LLC5 8788090 58 Reagan Inventions LLC Rothschild Connected
Devices Innovations, LLC6 RE43462 56 Barry H. Schwab and
Kinya WashinoHawk Technology Systems LLC
7 6795918 55 Wetro Lan LLC8 8879987 54 Michael D. Harold,
Zamboola LLCSockeye Licensing TX, LLC
8 8135342 54 Michael D. Harold Sockeye Licensing TX, LLC10 5999927 50 Xerox Corp. Genaville LLC10 5911140 50 Xerox Corp. Oberalis LLC
Rank Patent Title1 6266674 Random access information retrieval utilizing user-defined labels2 5388198 Proactive presentation of automating features to a computer user3 7400970 System and method for an advance notification system for monitoring and
reporting proximity of a vehicle4 6202150 Auto-escrowable and auto-certifiable cryptosystems5 8788090 System and method for creating a personalized consumer product6 RE43462 Video monitoring and conferencing system7 6795918 Service level computer security8 8879987 System, method and apparatus for using a wireless device to control other devices8 8135342 System, method and apparatus for using a wireless cell phone device to create a
desktop computer and media center10 5999927 Method and apparatus for information access employing overlapping clusters10 5911140 Method of ordering document clusters given some knowledge of user interests
Lex Machina – Patent Litigation Year in Review 201521
Lex Machina’s platform recognizes patent findings (any determination on the validity, infringement, and/or unenforceability of a patent). These findings reveal useful relationships between the type of finding and the procedural method used to reach the finding.
For example, findings of infringement tend to come from either trial or from consent judgment, while findings of non-infringement or invalidity are as likely as not to have come from summary judgment.
On June 19, 2014, the Supreme Court decided Alice v. CLS Bank, a case interpreting how 35 U.S.C § 101, the statute governing patentable subject matter, applies to computer-implemented inventions. In the wake of the decision, invalidations under § 101 have rose to record levels. In 2015, invalidations under § 101 have swung wildly by quarter.
The age (from the patent filing date) of patents at the time of case filing varies significantly across the top 20 busiest districts of 2015: The ANDA-heavy jurisdiction Districts of New Jersey (5 years, 351 days) has a median patent age several years younger than that in Eastern Texas. The Southern District of New York saw a marked increase from 2014, rising from 4 years, 227 days to 11 years 234 days.
Figure 35: Patent judgment types by finding, for findings in 2015
Infringement 174 findings
No Infringement 280 findings
Invalidity 157 findings
Unenforceability 3 findings
34.5%
18.4%13.2%
33.3%
0.6%
26.8%
0.7%4.3%
15.4%
50.4%
8.3%1.3%
22.9%
49.7%
14.6%3.2%
33.3%
33.3%
33.3%
Judgment TypeConsent JudgmentDefault JudgmentJudgment on the PleadingsSummary JudgmentTrialJMOL
Lex Machina – Patent Litigation Year in Review 2015 22
Figure 36: Patent findings by judgment types, for findings in 2015
Consent Judgment
149findings
Default Judgment
36findings
Judgment on thePleadings
48findings
Summary Judgment
243findings
Trial
125findings
JMOL
13findings
50.3%40.3%
8.7%
0.7%
5.6%
88.9%
5.6%
75.0%
25.0%
9.5%
32.1%58.0%
0.4%
46.4%
18.4%
34.4%
0.8%
7.7%
38.5%53.8%
Finding TypeInfringementInvalidityNo InfringementUnenforceability
Lex Machina – Patent Litigation Year in Review 201523
Figure 37: Patents invalidated, 2013-2015, under 35 U.S.C. § 101 for lack of patentable subject matter, by quarter
2013 Q2 2013 Q4 2014 Q2 2014 Q4 2015 Q2 2015 Q4Quarter / year of finding
0
5
10
15
20
25
30
35
40
45
Pate
nts
inva
lidat
ed u
nder
s 1
01
16 patents
18 patents
13 patents
44 patents44 patents
23 patents
28 patents
5 patents3 patents
3 patents
1 patents1 patents
Figure 38: Patents invalidated, 2013-2015, by basis
2013 Q1 2013 Q2 2013 Q3 2013 Q4 2014 Q1 2014 Q2 2014 Q3 2014 Q4 2015 Q1 2015 Q2 2015 Q3 2015 Q4Quarter / year of finding
0
5
10
15
20
25
30
35
40
45
Pate
nts
inva
lidat
ed
Other basis112 Written Description112 Enablement112 Def initeness
103 Obviousness
102 Anticipation / Novelty
101 Subject Matter
6/2/2014: Nautilus decision, 6/19/2014: Alice decision
Invalidity Basis101 Subject Matter102 Anticipation / Novelty103 Obviousness112 Definiteness112 Enablement112 Written DescriptionOther basis
Lex Machina – Patent Litigation Year in Review 2015 24
Figure 39: Median patent age, by district (top 20 districts by cases filed in 2015)
0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15Median patent age (years)
D.UtahS.D.N.Y.E.D.Tex.S.D.Fla.
N.D.Tex.W.D.Wash.
N.D.Ga.M.D.Fla.
E.D.Mich.N.D.Cal.
N.D.Ill.W.D.Tex.C.D.Cal.E.D.Va.
D.Del.D.Mass.S.D.Cal.D.Colo.
D.N.J.D.Minn.
12 years 290 days
11 years 234 days
11 years 184 days
11 years 157 days
10 years 328 days
10 years 152 days
11 years 75 days
10 years 61 days
9 years 354 days
9 years 341 days
9 years 285 days
9 years 228 days
8 years 211 days
8 years 204 days
7 years 118 days
6 years 105 days
5 years 351 days
5 years 102 days
10 years 9 days
9 years 39 days
Lex Machina – Patent Litigation Year in Review 201525
Figure 40: Total granted patent remedies, in cases filed 2005-2015, reaching remedy in 2012-2015
Permanent Injunction Preliminary Injunction0
200
400
600
800
Cas
es fi
led
with
rem
edy g
rant
ed
782 cases
61 cases
Figure 41: Time to granted injunction, in cases filed 2005-2015, reaching remedy in 2012-2015
Preliminary Injunction
0
2
4
6
8
10
12
14
16
18
20
Tim
e to
rem
edy (
mon
ths)
1.7
3.7
8.9
Remedy Timing and Case Resolutions
Understanding timing data is one of the best uses of Legal Analytics - knowing if and when an injunction will be decided makes for better decision-making: clients can know when their bills will change, lawyers can plan their schedules with greater confidence, and budgets can accurately account for the costs. These charts show the median time to an event (the middle number between the shaded boxes). The median represents the middle value, where as many took longer as shorter, and serves as a simple and useful average. The median time for a preliminary injunction is 3.7 months, and for permanent injunction is 10.6 months. Where the median lies in relation to the edges of the boxes also provides useful data. For example in looking at the preliminary injunction chart, the median of 3.7 months lies much closer to the top of the box (1.7 months) than the bottom (8.9) months. This means that the timing favors an earlier issuance: the fastest half of injunctions are issued in less than 4 while the next quarter of injunctions are spread out over 5 months, and the final quarter over even more time.
Permanent Injunction
0
5
10
15
20
25
30
35
40
45
50
Tim
e to
rem
edy (
mon
ths)
5.2
10.6
22.3
Lex Machina – Patent Litigation Year in Review 2015 26
Lex Machina generates a resolution for each case, reflecting how the case terminated.
The majority - 73.2% - of patent cases terminating between 2009 and 2014 settled. Of those that did not, the largest block (15.7% of terminated cases) reach a procedural outcome, such as transfer or consolidation. Wins by the claimant (6.9%) are more common than wins for the claim defendant (4.3%).
Looking at cases terminating in 2015 alone, the settlement rate increased to 76.1%, mainly at the expense of claimant and claim defendant wins (4.2% and 3.7% respectively). Interestingly, claimants won more often between 2009 and 2014 (4.3% to 6.9%), while claim defendants won more often in 2015 (4.2% to 3.7%).
Figure 42: Case resolutions, in cases terminating 2009-2015
Claimant Win Claim Defendant Win Likely Settlement Procedural0K
5K
10K
15K
Cas
es
17,189 cases73.2%
1,615 cases6.9% 1,000 cases
4.3%
3,688 cases15.7%
Figure 43: Case resolutions, in cases terminating in 2015
Claimant Win Claim Defendant Win Likely Settlement Procedural0K
1K
2K
3K
4K
5K
Cas
es
4,610 cases76.7%
224 cases3.7%
253 cases4.2%
925 cases15.4%
Lex Machina – Patent Litigation Year in Review 201527
Damages
Compensatory damages continue to be awarded in few cases, around 1.8 % of the terminated cases filed since the year 2000. 2015 saw the award of approximately $750m total in compensatory damages.
Players in the patent litigation space should be armed with knowledge of how asymmetric patent awards can be. Most individual awards are small, with a few outliers driving the high totals. Among all damages awarded in cases filed since the year 2000, 90% of the total compensatory awards in cases have been less than $9.6m, 75% less than $1.7m, and half less than approximately $170,000. Of damages granted since 2000, juries have granted about seven times more than judges ($15 billion versus $1.9 billion).
Understanding the propensity of districts to dispense damages directly impacts litigation exposure, as the amount of damages awarded varies disproportionately across districts. Relative to the number of cases filed in each jurisdiction, the Eastern District of Texas and the Southern District of California were the most generous while the Middle District of Florida and the Eastern District of Michigan were least generous. looking at median compensatory award per case by district, Delaware, Eastern Virginia, and Eastern Texas are the most generous, followed by a steep drop-off.
Figure 44: Cases, 2000-2015, with damages
Figure 45: Damages awarded in cases filed 2000-2015, by type
Figure 46: Total damages awarded during 2015 in cases filed 2000-2015, by type
* Total does not include costs, attorneys fees, or pre/post-judgment interest.
Note: Some cases may include multiple causes of action, for example, both patent and trademark claims. When damages in these cases are awarded and the apportionment between claim types cannot be determined, Lex Machina classifies them as “Other / Mixed Damage Types.” These charts exclude damages explicitly based on non-patent claims and theories (e.g. trademark damages based on infringers profits), even awarded in a case with patent claims.
Cases terminated since 2000 49,057Cases terminated since 2000 on the merits 5,688 11.7% of terminated casesCases terminated since 2000 on the merits with compensatory damages
876 1.8% of terminated cases
Compensatory damages: Reasonable royalties $10,036,225,659.87 Lost profits $3,840,976,080.88 Other / Mixed damage types $3,615,170,594.72Total damages* $17,492,372,335.47
Compensatory damages: Reasonable royalties $657,749,032.43 Lost profits $10,920,209.65 Other / Mixed damage types $85,311,596.74Total damages* $753,980,838.82
Lex Machina – Patent Litigation Year in Review 2015 28
Figure 47: Median damages, 2000-2015, by year and type
Year Reasonable Royalty Lost ProfitsOther / Mixed Damage
Types Attorneys' Fees Costs
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015 $40,75475 cases
$16,075100 cases
$33,68593 cases
$32,02881 cases
$19,52180 cases
$11,78376 cases
$21,00360 cases
$20,67978 cases
$29,02488 cases
$7,68365 cases
$19,21157 cases
$15,31047 cases
$17,63233 cases
$10,53141 cases
$9,4869 cases
$3734 cases
$176,23130 cases
$77,56333 cases
$130,43321 cases
$43,83825 cases
$88,62934 cases
$54,86531 cases
$66,53235 cases
$41,26433 cases
$228,48430 cases
$41,13829 cases
$44,66830 cases
$190,00029 cases
$140,63128 cases
$9,27127 cases
$39,58814 cases
$9,7655 cases
$511,89216 cases
$1,834,50020 cases
$418,72027 cases
$238,00019 cases
$250,00033 cases
$205,00034 cases
$164,98531 cases
$169,67535 cases
$300,00035 cases
$229,05437 cases
$224,11732 cases
$168,91844 cases
$104,75331 cases
$61,15037 cases
$26,04316 cases
$5,00020 cases
$423,0795 cases
$1,191,15912 cases
$5,500,0005 cases
$1,600,00017 cases
$5,909,97413 cases
$3,219,86312 cases
$1,712,62510 cases
$1,817,60315 cases
$150,0009 cases
$2,344,51210 cases
$472,50010 cases
$3,602,21214 cases
$150,0195 cases
$63,6346 cases
$14,3283 cases
$2,100,0001 cases
$5,443,48529 cases
$3,000,00027 cases
$311,37927 cases
$1,975,91641 cases
$1,927,55132 cases
$1,284,86125 cases
$5,647,27838 cases
$2,883,14840 cases
$596,63932 cases
$1,201,79119 cases
$1,344,00015 cases
$307,92319 cases
$683,88518 cases
$318,3989 cases
$148,5475 cases
$129,8403 cases
$0.10M $1.00M $10.00M $100.00M $1,000.00MDamages amount (shown on truncated logarithmic scale)
ReasonableRoyalty
Lost Profits
CombinedCompensatory
Other / MixedDamage Types
25P: $188K
25P: $150K
25P: $62K
25P: $29K
Max: $1,535.89M
Max: $1,168.47M
Max: $1,672.59M
Max: $929.86M
90P: $47.98M
90P: $52.62M
90P: $28.50M
90P: $9.60M
Median: $1.39M
Median: $1.53M
Median: $0.46M
Median: $0.17M
75P: $13.7M
75P: $7.8M
75P: $5.5M
75P: $1.7M
Figure 48: Damages percentiles, 2000-2015, by type
Note: In cases where multiple damages awards were made in separate years, the total sum is reflected under the most recent year.
Lex Machina – Patent Litigation Year in Review 201529
Figure 49: Damages by judgment type, awarded 2000-2015
Judgment Type
Consent Judgment Default Judgment Judge Jury Trial$0M
$5,000M
$10,000M
$15,000M
Dam
ages
awa
rded
125 cases11.3% of damages
$1,973M
380 cases85.8% of damages
$14,963M
186 cases0.3% of damages
$47M
250 cases2.6% of damages
$461M
Figure 50: Districts by ratio of compensatory damages awarded (in 2005-2015) to cases filed (in 2005-2015)
0K 100K 200K 300K 400K 500K 600K 700K 800K 900K 1000K 1100KRatio of compensatory damages awarded to cases filed
N.D.Cal.
S.D.Cal.
S.D.N.Y.
E.D.Tex.
E.D.Va.
N.D.Tex.
D.Mass.
D.Del.
W.D.Wash.
C.D.Cal.
D.N.J.
D.Minn.
E.D.Mich.
M.D.Fla.
D.Utah
N.D.Ill.
N.D.Ga.
D.Colo.
N.D.Ohio
Otherdistricts
$2,135.51M2,169 cases f iled
$969.93M1,395 cases f iled
$5,266.84M8,733 cases f iled
$1,742.48M5,361 cases f iled
$445.58M3,402 cases f iled
$224.90M1,937 cases f iled
$103.31M1,849 cases f iled
$721.25M968 cases f iled
$377.52M679 cases f iled
$296.81M627 cases f iled
$301.45M788 cases f iled
$121.08M485 cases f iled
$60.71M656 cases f iled
$47.85M643 cases f iled
$48.58M698 cases f iled
$35.53M551 cases f iled
$32.58M626 cases f iled
$21.17M478 cases f iled
$15.64M454 cases f iled
$3.42M* National ratio: $427,689 per case f iled
Note: Includes costs, and attorneys’ fees.
Lex Machina – Patent Litigation Year in Review 2015 30
Figure 51: Median damages, 2000-2015, by year and type
$0M $1M $2M $3M $4M $5M $6M $7M $8M $9M $10M $11M $12M $13MMedian compensatory damages per case
D.Del.
E.D.Tex.
E.D.Va.
D.Mass.
S.D.Cal.
N.D.Tex.
D.Utah
N.D.Cal.
E.D.Mich.
D.Minn.
D.N.J.
W.D.Wash.
N.D.Ohio
S.D.N.Y.
C.D.Cal.
N.D.Ill.
N.D.Ga.
M.D.Fla.
D.Colo.
$0.13M245 cases with damages
$10.46M40 cases with damages
$7.68M98 cases with damages
$2.98M21 cases with damages
$0.73M28 cases with damages
$0.62M23 cases with damages
$0.61M41 cases with damages
$0.43M16 cases with damages
$0.40M75 cases with damages
$0.27M36 cases with damages
$0.18M24 cases with damages
$0.18M39 cases with damages
$0.16M13 cases with damages
$0.14M21 cases with damages
$0.13M94 cases with damages
$0.13M72 cases with damages
$0.05M31 cases with damages
$0.05M52 cases with damages
$0.01M14 cases with damages
National median: $200,175
Note: In cases where multiple damages awards were made in separate years, the total sum is reflected under the most recent year.
Because cases often take 2-3 years to reach the damages stage, there is an aggregate time gap between when a district sees an increase in case filings and the corresponding increase in total damages. Delaware, in particular, saw an increase in the number of cases filed there in 2012-2015. These cases, counted towards the district’s case count but largely too young to have reached damages by the end of 2015, may partly account for Delaware’s low ratio, especially in light of the higher median awards shown below.
Lex Machina – Patent Litigation Year in Review 201531
Figure 52: Petitions filed, 2012-2015, by month
2013 2014 2015 2016Month / Year
0
20
40
60
80
100
120
140
160
180
CBM
and
IPR
revie
w pe
titio
ns
100
101102
106
89
116 117
184 182
120
77
17
76
179 177
73
2424
69
26 27
131131131
65
30
31
62
136
165164
60
138139
26
38
159
143
54
1111
145
22
1210
10
2113
139
999
2 2 141488
83
19 19
45
15
774
18 16 1616
66
55
5
Trial typeCBMIPR
PTAB
The PTAB (Patent Trial and Appeal Board), was created by the America Invents Act and began hearing petitions for Covered Business Method reviews (CBMs) and Inter Partes Reviews (IPRs) on September 16, 2012, the first day the procedure was available.
IPR activity declined slightly in 2015 but remains much more similar to 2014 than previous years. Lex Machina’s trial flow diagram provides insight into how the PTAB is disposing of petitions. Showing the flow of cases from the filing of a petition all the way through final written decision (but also including settlement and procedural outcomes) allows practitioners to easily understand the likelihood of each result.
See Lex Machina’s recent PTAB report for a deeper analysis of PTAB in 2015.
Figure 53: Trial Flow, PTAB IPR petitions, filed and terminated 2012 - 2015
Lex Machina – Patent Litigation Year in Review 2015 32
Disposition Bar
ton
Bul
lock
Cha
rnes
k i
Esse
x
Gild
ea
Har
ris
Lord
Luck
ern
Pend
er
Rog
ers
Shaw
Cease & Desist Order
Complaint Withdrawn
Consent Order
General Exclusion Order
Limited Exclusion Order
No Violation Found
Other
Settlement
Violation Found 2
10
3
5
4
2
1
4
2
4
23
15
6
1
4
9
4
1
11
2
2
2
1
8
2
8
18
3
12
5
4
5
5
4
2
1
1
1
1
1
1
5
25
8
4
3
6
6
2
11
29
2
14
10
5
6
10
10
9
16
1
5
11
2
2
5
7
6
31
4
14
11
5
7
7
7
2
2
1
3
1
3
Figure 54: ITC investigations filed, 2007-2015
2007 2008 2009 2010 2011 2012 2013 2014 20150
10
20
30
40
50
60
70
ITC
337
Inve
stig
atio
ns
71
42
4140
39 3634
32
57
Figure 55: ITC dispositive outcomes, by current ALJ, investigations noticed and terminating 2007-2015
ITC
Lex Machina – Patent Litigation Year in Review 201533
Using Boxplots to Understand Timing
Lex Machina’s analytics use a data visualization known as the boxplot to convey information about the timing of significant events in a case. Knowing how to interpret this data gives you an advantage when it comes to strategy, budgeting, and setting expectations, as well as in other decisions that involve case timing.
Consider a newly filed case: Regardless of whether you’re an outside counsel, say, trying to determine how large of a flat fee to charge or trying to make sure two trials don’t overlap, or an inside counsel estimating legal spend and evaluating a firm’s proposed budget, case timing matters. Knowing the lower and upper bounds of how long it may reasonably take the case to reach injunction can give both kinds of counsel a strategic advantage over opponents lacking such nuanced information. Moreover, knowing the best and worst case scenarios for timing, or exactly how likely it is that a case will be active in 6 months enables more far-sighted contingency planning.
A boxplot summarizes a series of data points to help you understand the shape, or distribution of the values in those points. The boxplot is drawn based on five numbers: the median, the upper and lower quartiles, and the whiskers for a distribution.
Paying attention to these key parts of the plot will help you quickly understand what you need to know. Although boxplots provide a wealth of information, the four observations below, in order from simplest onwards, are all one needs to easily grasp the significance of a boxplot.
Median: the middle dividing line of the box splits the data points evenly so that 50% fall to either side. It’s a form of average that gives a single number representation of what to reasonably expect.
Box bounds: the box encloses the middle-most 50% of the datapoints (from the 25th percentile to the 75th), with 25% of the datapoints falling outside to either side. This makes the box a good representation of the range one can reasonably expect.
Box compressed or elongated: a more compressed box means that more datapoints fall into a smaller range of time and therefore are more consistent; in contrast a longer box means that the datapoints are spread out over a wider time period and are therefore less predictable.
Whiskers: Whiskers are drawn to show the outside bounds of reasonable expectation, beyond which datapoints are considered outliers.1
1 By statistical convention, boxplots define outliers as points beyond more than 1.5 times the width of the box (sometimes called the “interquartile range”).