PWC Releases 2008 Patent Damages Study

Aron Levko, together with Vincent Torres and Joseph Teelucksingh have released the 2008 PricewaterhouseCooper Patent Litigation Study, and it appears from the study that previous trends in patent litigation have continued into this year. Specifically, the study found that:

• The annual median damages award since 1995 has remained fairly consistent, when adjusted for inflation.

• Reasonable royalties continue to be the predominant measure of damages awards.

• Certain federal district courts (particularly Virginia Eastern, California Central, and Pennsylvania Eastern) continue to be more favorable to patent holders, with shorter time-to-trial, higher success rates, and higher median damages awards.

There are some new trends being followed as well:

• The disparity between jury and bench awards has widened and is likely the contributing factor in the significant increase in use of juries since 1995.

• Alleged infringers increase their trial success rates slightly as plaintiffs, but have not experienced the same increased success in summary judgments.

• While the median time-to-trial has remained fairly constant since 1995, significant variations arise by jurisdiction, and patent holder success rates tend to decrease with longer time-to-trial, up to a point.

Overall, the study found that patent holders have been successful 37% of the time overall, with a 19% win rate in summary judgments and a 57% win rate at trial. 32% of summary judgments are appealed, with 59% modified or reversed; while 43% of trial decisions are appealed, with 67% modified or reversed.

Interestingly, with the alleged "explosion" in patent litigation, there were no identifiable increases in time-to-trial. In fact, since 2005, the median time-to-trial has dropped by more than 6 months.

Regarding the "Top Ten" Rocket Dockets, the breakdown is as follows, along with the median time-to-trial (in years):

1) ED Virginia - 0.88
2) WD Wisconsin - 0.91
3) CD California - 1.71
4) MD Florida - 1.71
5) ED Texas - 1.79
6) Delaware - 1.89
6) Kansas - 1.89
8) ED Pennsylvania - 1.91
9) SD Texas - 1.99
10) ED Michigan - 2.03

Some notable "Crawler" dockets include Massachusetts (3.76 years) and Connecticut (4.66 years).

The "Top Five" patent-friendly jurisdictions, along with overall success rates, include:

1) MD Florida - 66.7%

2) ED Texas - 54.6%

3) CD California - 51%

4) ED Virginia - 50%

5) WD Wisconsin - 50%

The "Bottom Five" jurisdictions for patentees, along with overall success rates, include:

1) Connecticut - 15.8%

2) ED Michigan - 18.5%

3) SD Florida - 25%

4) SD New York - 30.6%

5) ND California - 33%

The "Top Five" districts with the highest appeal rates, along with their affirmance and modified decision/reversal rates are:

1) Massachusetts - 46% appealed (36% affirmed, 64% modified/reversed)

2) ND California - 42% appealed (38% affirmed, 62% modified/reversed)

3) ND Illinois - 41% appealed (29% affirmed, 71% modified/reversed)

4) Delaware - 35% appealed (54% affirmed, 46% modified/reversed)

5) SD New York - 34% appealed (36% affirmed, 64% modified/reversed)

There is much more information in the study - MediaFire is down right now, but I will post a copy of the report later this morning.

In the meantime, if you want additional information, email Aron Levko at aron.levko@us.pwc.com

UPDATE 1: MediaFire is still down - as soon as it comes back, I will post the study.

UPDATE 2: View/download the report here (link)