2017 Patent Litigation Study

Our annual Patent Litigation study provides analysis and insights on the trends related to patent decisions. We look into final decisions at summary judgment and trial, including median damages awards, success rates, time-to-trial, jury v. bench, trends in appeals, and other timely topics. 

Change on the horizon? 

The number of patent cases filed declined again in 2016, representing a year-over-year drop of 9%. At the same time, the number of patents granted increased by 4%. 

What’s behind the shift in direction?

Damages: Which way is up? 

Despite Idenix mega award, median damages down 40% relative to last year. 

Medical devices take the #1 spot for highest median damages awards. 

Non-practicing entities (NPEs) continue to experience higher damages awards in the last five years; widening to 3.8x those of practicing entities.

Success rates: How are jury and bench trials faring? 

Jury versus bench proportion continues to rise to 80/20, up from 75/25. 

In the last 5 years, the median jury award was 15x than the median bench award.

Practicing entities vs. non-practicing entities (NPEs): Where’s the gap? 

Despite widening damages awards, NPEs face lower success rates at trial and in summary judgments. NPE cases remain concentrated: Five of 94 district courts account for nearly half of all identified NPE decisions.

Emerging trends: What can we expect? 

Patentees claiming infringement of a design patent can seek to recover damages based on damages calculated on apportionment between the patented invention and other components or they can claim the infringer's profits as damages.

The days of venue shopping may be over—or not—as the Supreme Court granted TC Heartland’s petition for certiorari in December. 

The Court’s guidance on Halo v. Pulse and Stryker v. Zimmer means that winning enhanced damages gets a little easier.