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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


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


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


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.


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


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.


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


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


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


Figure 13: For top districts, cases filed 2005-2015 and reaching trial in 2012-2015

District


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


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


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.


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

10

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



11 years 72 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


10 years 210 days

9 years 75 days


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%.


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!


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%


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


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


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


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


51 cases50 cases

47 cases45 cases


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



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


Figure 33: Most frequently asserted patents in 2015


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’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


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


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


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


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 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%


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


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.


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


$14,963M


$47M


$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




$721.25M968 cases f iled












$3.42M* National ratio: $427,689 per case f iled

Note: Includes costs, and attorneys’ fees.


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



















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.


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


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

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Figure 55: ITC dispositive outcomes, by current ALJ, investigations noticed and terminating 2007-2015

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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”).

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