PWC Survey Updates Patent Litigation Statistics

Price Waterhouse Cooper conducted a study including 2,193 U.S. Federal District Court cases from 2006, which included

• 1,367 patent cases,
• 797 trademark cases, and
• 29 cases that included both patent and trademark issues.

The study also reviewed 350 CAFC cases, which included 273 patent cases, 70 trademark cases, and 7 cases that included both patent and trademark issues. For the second year in a row, the number of patent lawsuits have declined from the previous year.

Some of the interesting findings include:

Juries continue to play important role for plaintiffs - juries were again found to award larger damages than judges, which continued the steady shift from bench trials in patent cases. Since 2000, juries have decided 53 percent of patent damage awards.

Overall plaintiff win-rate is lower - the PWC study found that plaintiffs won only 35% of the time. This seems low to me, as recent studies indicated that the plaintiff win rate was closer to 58% (see earlier 271 Blog post). However, the win rate increases to 61% after motions for summary judgment have been considered and the case continues.

Damage amounts are leveling off - during 2000 - 2006, the number of awards in patent cases increased 59 percent compared to the 1990s. However, there has been a leveling of median award amounts in the past few years and a sharp reduction in the average award amount over 2006.

More "reasonable royalties" and less "lost profits" - since 2000, reasonable royalties have overtaken lost profits as the most frequent basis of damage awards in patent cases (65 and 32 percent respectively).

The most "plaintiff-friendly" jurisdiction in patent cases is . . . W.D. Wisconsin? While it may not be as well-known as the E.D. Tex., the W.D. of Wisconsin has been a popular plaintiff's destination for a while. Judges Barbara Crabb and John Shabaz have shown they can move cases every bit as fast as judges Ward, Davis and Folsom, and it isn't uncommon to see patent cases go to verdict in a year's time (for an interesting article on the W.D. Wisconsin, click here ). The W.D. Wisconsin is also one of the handful of jurisdictions that have adopted patent rules for litigation (the others being in California, Texas, Georgia & Pennsylvania).

One of the surprising findings of the PWC study was that the Western District of Wisconsin has been the most favorably disposed to plaintiffs (yes, even moreso than the E.D. Texas), with a recent win rate of 63 percent overall and 91 percent after summary judgment.

As a patent plaintiff, stay away from the E.D. Michigan - perhaps even more surprising was the finding that the district with the lowest win rate for plaintiffs is the Eastern District of Michigan, with a plaintiff win rate of 12 percent overall (!) and 33 percent after summary judgment.

To obtain a copy of the report, contact: Kathryn Oliver @ (860) 241-7333, or e-mail: kathryn.oliver@us.pwc.com.

See press release for the report here.