Bombshell Study: Heavily Litigated NPE Patents Overwhelmingly Lose at Trial

“To date, litigated patents were viewed as “strong” patents –
the types that defendants were supposed to avoid taking to trial.
Moreover, litigated patents were seen as more valuable, since they
managed to survive an all-out attack on validity by a presumably
well-financed defendant. Earlier studies (John R. Allison et al.,
Valuable Patents, 92 Geo. L.J. 435 (2004) looked at litigated
patents, and found that they differed from non-litigated patents in
that they (1) include more claims, (2) cite more prior art, (3) are
cited more often by later patents, and (4) come from larger
“families” of patents/continuations. Each of these factors are now
used in conventional methodologies to determine the private value
of patents.

“John Allison, Mark Lemley and Joshua Walker recently took on
the task of identifying every patent that was litigated eight or
more times between 2000 and February 2009, including cases still
pending, and compared the outcomes of the cases against patents
that were litigated only once. In the course of their analysis,
they found 106 such patents, which have been litigated in a total
of 2,987 different patent assertions in 478 different cases, often
against multiple defendants.”

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