The Doctrine of Equivalents Isn’t Very Important

Of every 100 findings of direct infringement by U.S. courts, only about 10 are findings of direct infringement under the doctrine of equivalents.1

This number sheds light on the importance of DOE claim scope relative to literal claim scope. Some applicants may spend a lot of time and energy on the DOE and the nuances of the Festo case and its progeny, or go to lengths to avoid amending claims in ways that could curb DOE protection. When that translates into giving short shrift to the literal language of claims, it’s the tail wagging the dog. Applicants should bear in mind that when a patent is found infringed, nine out of ten times it’s found literally infringed.

IPR Statistics Revisited: Yep, It’s A Patent Killing Field

Some view Inter Partes Review (IPR) as a patent killing field. Yet, the statistics published by the PTO seem to suggest that the patent kill rate in IPR is modest, and other commentators suggest that it’s roughly comparable to the kill rate in district court. The truth is closer to the killing field. Whether this will change under Trump remains to be seen, but there are reasons to believe it might.

There are four reasons why the killing field view is more accurate. First, the PTO’s reported numbers are somewhat misleading. When reporting IPR numbers, the PTO reports on petitions “completed to date.” This little fact, as others have noticed, makes the kill rate seem lower than it is.

Second, not only are the kill rates under 102 and 103 higher in IPR than in district court, but also those who suggest the kill rates are roughly comparable compare apples to oranges. In IPR, only printed publications can be used to attack patents. In district court, challengers can also attack with the other categories of prior art: prior public use or sale, public knowledge, derivation or incorrect inventorship, and invention by another. In district court, these other categories account for about 40% of kills under 102.

Third, although the institution rate has dropped since the early days of IPR, some of the drop is attributable not to a decrease in the Board’s willingness to institute any given claim but to an increase in the willingness of patentees to settle IPRs before the institution decision.

The fourth reason that the killing field view is more accurate concerns the rate at which parallel litigation is stayed, which does not speak to the kill rate but does speak to the overall power that IPR confers on patent challengers. Some commentators report a grant rate for stays that is misleadingly low because it’s based on all motions to stay filed on the ground of a co-pending IPR. It’s somewhat common for an accused infringer to file one motion before institution and one after and have the first fail and the second succeed. When calculated per motion filed, the grant rate is only around 50% to 60%. But when calculated per case, which is more meaningful, the grant rate is closer to 82%.

PTO Numbers Are Misleading

Below is a diagram from the PTO report on AIA Trial Statistics, current through 2016. It shows the disposition of IPR petitions completed to date. Take a quick look at the light blue hexagon at the top and the red and yellow hexagons at the bottom.

The light blue hexagon shows the total number of petitions filed from the inception of IPR through 2016. The red hexagon shows the number of trials in which all instituted claims were held unpatentable and also states it as percentage of total petitions filed. The yellow hexagon shows the number of trials in which some instituted claims were held unpatentable and likewise states it as a percentage of total petitions filed.

Add the 23% in the red hexagon to the 5% in the yellow hexagon and we get 28% as the percentage of petitions in which the Board invalidated at least one claim. In addition, as shown in two of the gray hexagons, patentees requested adverse judgment after institution in 191 IPRs and before institution in 26 IPRs, resulting in another 5% of kills, for a total kill rate of 33% (28% + 5%).

The real kill rate, however, exceeds 33%. The reason is that after a petition is filed it takes about 18 months to get to trial and decision. Accordingly, the trial numbers in the red and yellow hexagons relate to petitions filed 18 or more months prior to the last day of 2016. Yet, in calculating the percentages in the red and yellow hexagons, the PTO divided by the number of all petitions filed as of the last day of 2016, instead of by the number of petitions filed as of 18 or more months prior to the last day of 2016.1 Similarly, the requests for adverse judgment in the gray hexagons relate to petitions filed at various times prior to the end of 2016.

One study that accounts for the delay until final decision is the Report on Patent Trial and Appeal Board Contested Proceedings (2016), prepared by Fitzpatrick, Cella, Harper & Scinto. This study looked at a set of IPRs consisting of those denied institution for substantive reasons through 2014 plus those that reached final written decision or request for adverse judgment through 2015. Among this set of IPRs, 60% of claims challenged in petitions were killed either directly by the Board or by way of request for adverse judgment by the patentee.

The Fitzpatrick study states the kill rate as a percentage of claims rather than as a percentage of IPR petitions. Arguably, the latter is more meaningful because the broader and more valuable claims in a challenged patent are more likely to be killed. For example, suppose all 20 claims in a patent are challenged. The two broadest claims cover a swath of infringers, while the remaining 18 claims cover few or no infringers. The two broadest claims are killed; the other 18 survive. In substance, this largely or entirely amounts to a loss for the patentee, but if we look only at the percentage of claims killed, it appears to be a 90% victory for the patentee.

On the other hand, the numbers in the red and yellow hexagons above tell us that, when the Board holds claims unpatentable, it holds all of the instituted claims unpatentable 82% of the time (23% / 28%). Similarly, a study by Brian Love and Shawn Ambwani found, that among IPRs reaching final decision, 77% of all instituted claims are either held unpatentable or disclaimed.2 If the norm when killing instituted claims is to kill them all, then stating the kill rate as a percentage of claims falls only a bit short of stating it as a percentage of petitions.

In any event, other data in the PTO report on AIA Trial Statistics suggests that the kill rate for petitions is about four percentage points higher than the kill rate for claims. If we adjust by adding 4% to the 60% from the Fitzpatrick study, we get an estimated kill rate per petition of about 64%. That is, in about 64% of petitions, one or more of the claims will not survive.

Kill Rates in IPR Greatly Kill Rates in District Court

The Fitzpatrick study finds that, of challenged claims that reach a decision on the merits, 49.6% are invalidated under 103 and 41.1% under 102. (Note that some claims are invalidated under both.) The study notes further that, in district court cases in which validity is adjudicated, 27.8% of claims are invalidated under 103 and 31.1% under 102. (Again, some claims are invalidated under both.) According to these numbers, the potency of 103 is much greater in IPR than in district court, while the potency of 102 is modestly greater.

In IPR, however, the only category of prior art available is printed publications. In district court, available prior art also includes prior public use or sale under 102(b), public knowledge under 102(a), derivation or incorrect inventorship under 102(f), and (for pre-AIA patents) invention by another under 102(g).

It is remarkable that, although printed publications are the only type of art available in IPR, the kill rate under 102 is nonetheless about a third higher than in district court. In district court, printed publications account for about 60% of invalidations under 102; the other art categories account for the remaining 40%.3

If we take 60% of the 31.1% kill rate under 102 in district court, we get a kill rate under 102 printed publications in district court of only 18.7%. Now, we can compare apples to apples and see that the 18.7% kill rate for printed publications in district court is dwarfed by the 41.1% kill rate for printed publications in IPR. (Note that in IPR attack under 103 is likewise limited to printed publications, but this limitation is far less significant for 103 because the vast majority of 103 attacks have always been based on printed publications.)

The Drop in the Institution Rate Is Due in Part to Rise in Settlement

A patentee may request adverse judgment or settle by dismissing a co-pending infringement suit against the petitioner or by entering into a covenant not to sue. These measures occur in the shadow of what the patentee believes the Board would likely hold were it to rule on the challenged claims. When IPR first started, its institution and kill rates were very high and IPR quickly developed a reputation as a killing field.4

In what appears to be a reaction, patentees became more willing to settle. In 2014 there were more than five times as many settlements before institution as there were in 2013. In 2015 there were, compared to 2014, more than two and half times as many settlements before institution and 82% more after.5 Accordingly, some of the decrease in the institution rate is due not to a decrease in the Board’s propensity to institute any given claim but to an increase in the settlement rate.

The institution rate dropped in part because some of the IPRs the Board would have instituted settled before they could be instituted. According to the PTO’s AIA Trial Statistics, among IPRs that reached the institution decision, the Board instituted 86.5% of challenged claims in FY2013, 74.3% in FY2014, and 65.3% in FY2015. We can estimate the upper limit of the extent to which pre-institution settlement accounts for the decreases in institution across those years by (1) seeing what the institution rates would have been had all of the IPRs that settled pre-institution instead been instituted and by (2) comparing the changes in the counterfactual institution rates from year to year to the changes in the reported institution rates from year to year.

The counterfactual institution rates come out to 87.8% in FY2013, 77.5% in FY2014, and 71.6% in FY2015. When we compare these to the reported rates, it appears that pre-institution settlement accounts for only as much as one-sixth of the decrease in institution from FY2013 to FY2014. Pre-institution settlement, however, accounts for as much as two-thirds of the decrease in institution from FY2014 to FY2015. That is, the difference between the counterfactual rates for FY2014 and FY2015 is only one third as large as the difference between the reported rates for FY2014 and FY2015.

Patentees may settle to preserve the validity of the claims challenged in the IPR. In addition, when the IPR challenges fewer than all of the claims in the patent, the patentee may settle to minimize the effect on the unchallenged claims. The patentee may also settle to minimize the effect on related patents.

By settling before the patentee’s preliminary response, which comes due about three months before the institution decision, the patentee can avoid taking a position on the prior art or on claim construction. By settling before the institution decision, the patentee can avoid a decision by the Board to institute that suggests in and of itself, or that includes language that suggests, that the claims are invalid. The patentee can also avoid claim construction by the Board that could conflict with the construction the patentee may want to advance in a future infringement suit.

To be sure, however, settlement in view of the threat posed by IPR amounts to some degree of loss for the patentee. Although settling officially preserves the validity of the patent, the fact that the patentee chose to settle puts other infringers and licensees on notice that the patent is vulnerable. Furthermore, the IPR file, a public record, sets forth the prior art to attack it with. And of course when a patentee settles an IPR by dismissing a co-pending suit against the petitioner, the patentee foregoes some or all of what it would have gained had it maintained the suit.

Co-Pending Suits Are Usually Stayed

Some commentators report a grant rate for stays that is based on all stay motions filed before and after institution of a co-pending IPR. When based on all filed stay motions, the grant rate appears to be around 60% or so. Motions filed after institution, however, are more likely to succeed. When the grant rate is based on stay granted per case, which is more meaningful, the grant rate is higher.

According to Love and Ambwani, in 80% of instituted IPRs the challenged patent was being asserted in litigation between the patentee and the petitioner. Among the co-pending suits in which a motion(s) to stay was filed and ruled on, stay was granted 82% of the time. (About 10% of the motions were never ruled on because either the case first settled or it was stayed for some reason other than the IPR.)

Note, however, that there was variation across the district courts. Love and Ambwani found that the Eastern District of Texas granted stay in view of IPR in only 56% of cases. Another source reports that the E.D.Tex. grants stay in view of IPR in only 50% of cases.6

In the 13 years that inter partes reexamination was available, only 1,919 were ever filed. In contrast, in the four and a half years that IPR has been available, over 5,600 have been filed. The popularity of IPR with patent challengers is no surprise given the statistics above.

Can we expect changes under the Trump administration that tilt the scales back to patentees? After all, it can be argued that investment in technology may be diverted to countries more likely to uphold patents. One could point out, for example, that China recently embraced software patents and that in 2016 the Chinese patent office received nearly twice as many patent applications as the USPTO.7

Although Trump’s views on patents are unknown as of yet, a new report from Shearman & Sterling suggests that experiences with his own IP (at least in the context of branding) and the views of those who have his ear, many of whom are staunch supporters of patents, would tend to make him pro-patent.8 There is, however, no reason to believe that patents are a priority for Trump at this point in time.

Useful Patent Statistics

The arts of prosecuting, litigating, monetizing and teaching patents can progress only so far without benefit of empirical, quantitative data. To that end, we’re gathering up the most useful patent statistics available today. Most of them are little known, because they come from a wide variety of scattered sources where they are typically presented in raw form or in some other user unfriendly manner.

We’ll be expanding and updating our collection of patent statistics on a weekly basis. The section below, Featured Statistics, is a preview of things to come. As the collection grows, we will organize the statistics by topic and subtopic.

Featured Statistics

Invalidity

From 2005 to 2013, U.S. patents litigated to final decision were invalidated under the following grounds at the following rates:

  • 1.7% under § 102(a) earlier public knowledge or publication
  • 3.9% under § 102(b) time-bar publication or patent
  • 1.4% under § 102(b) public use
  • 1.7% under § 102(b) on sale
  • 1.0% under § 102(e) earlier-filed US patent of another
  • 0.5% under § 102(f) derivation or incorrect inventorship
  • 0.7% under § 102(g) prior invention by another (novelty)
  • 8.7% under § 103 obviousness
  • 2.6% under § 112(1) inadequate written description
  • 1.5% under § 112(1) lack of enablement
  • 0.5% under § 112(1) best mode (no longer a ground for invalidity)
  • 3.9% under § 112(2) claim indefiniteness
  • 0.2% for double patenting
  • 0.4% for improper broadening of reissue

Some comments about these numbers are in order.

First, the dataset on which they are based consists of 3316 case decisions from 2005 to 2013, which were coded as to rulings on 40 legal issues by the University of Houston Law Center. The dataset includes all Federal Circuit rulings (including summary affirmances under Rule 36) and all reported lower rulings from district courts and the ITC. See U.S. Patent Litigation Statistics, Institute for Intellectual Property and Information Law, University of Houston Law Center, at patstats.org (visited Jan. 2017)

Second, note that, under all parts of 102(b) combined, 7% of patents are invalidated under 102(b), which makes it four times more likely than 102(a) to invalidate a litigated patent.

Third, more patents are invalidated under 102 (10.9%, all 102 sections combined) than under 103 (8.7%), which belies the notion that non-obviousness is the primary gatekeeper of patent law.

Fourth, indefiniteness under 112(2) has become more important. At an invalidation rate of 3.9%, it now accounts for almost as many invalidations as written description and enablement combined (4.1% combined)! From 2005 to 2009, claims were invalidated under 112(2) in only about 9.4 cases per year; from 2010 to 2013 that number doubled to about 20.8 cases per year. In light of recent academic work and Supreme Court decisions expressing concern about indefiniteness, we suspect the importance of 112(2) has only grown since 2013.

Fifth, for cases from 2010-2013, the dataset identifies each case for which each ground of invalidity was decided. This data shows that, when enablement and written description are both adjudicated, they rise and fall together. That is, in the 23 cases from 2010-13 in which both enablement and written description were decided, the outcome for both was the same: either both requirements were found satisfied or both were found unsatisfied. This tends to corroborate Ariad’s position in Ariad Pharmaceuticals v. Eli Lilly, 598 F.3d 1336 (Fed. Cir. 2010) (en banc), in which Ariad argued there is no substantive difference between enablement and written description.

Defenses

The numbers below are based on the University of Houston’s dataset of 3316 cases decided 2005-2013, discussed above in the section on Invalidity.

Enforeeability

Inequitable Conduct. In 3.6% of the cases, the patent was held unenforceable due to inequitable conduct. When the issue was litigated to decision, the accused infringer won only about 26.5% of the time.

Note that the rate at which the issue was litigated to decision fell over the years. From 2005 to 2011, it was litigated to decision about 53 times per year on average. From 2012 to 2013, it was litigated to decision only about 35 times per year on average. We suspect the rate has fallen a bit since 2013.

Patent Misuse. Patent misuse was decided in 33 (or 1.0%) of the cases. Of the 33 cases, the accused infringer won only 1 (or 3.0%) on this ground.

Procedural Defenses

Laches. Laches was decided in 94 (or 2.8%) of the cases. Of the 94 cases, the accused infringer won 22 (or 23%) on this ground.

Equitable Estoppel. Equitable estoppel was decided in 61 (or 1.8%) of the cases. Of the 61 cases, the accused infringer won 17 (or 28%) on this ground.

Failure to Mark. Failure to mark was decided in 44 (or 1.3%) of the cases. Of the 44 cases, the accused infringer won 29 (or 66%) on this ground.

Infringement Defenses

Preexisting License. Whether the accused infringer had licensed the patent in question was decided in 54 (or 1.6%) of the cases. Of the 54 cases, the accused infringer won 28 (or 52%) on this ground.

Exhaustion. Whether first sales had exhausted the patentee rights was decided in 81 (or 2.4%) of the cases. Of the 54 cases, the accused infringer won 48 (or 59%) on this ground.

Exemption under 271(e). Whether the accused infringer was exempt under the FDA safe harbor provision of 271(e) was decided in 15 (0.45%) of the cases. Of the 15 cases, the accused infringer won 7 (or 47%) on this ground.

Exemption for Experimental Use. The common law defense of experimental use was not decided in any of the cases. It may therefore behoove patent law professors to remove experimental use from their syllabi.

Doctrine of Equivalents

Of every 100 findings of direct infringement by U.S. courts, only about 10 are findings of direct infringement under the doctrine of equivalents.

This number sheds light on the importance of DOE scope relative to literal scope. Some applicants may spend a lot of time and energy on the DOE and the nuances of the Festo case and its progeny, or go to lengths to avoid amending claims in ways that could curb DOE protection. When that translates into giving short shrift to the literal language of claims, it’s the tail wagging the dog. Applicants should bear in mind that when a patent is found infringed, nine out of ten times it’s found literally infringed.

Note also that findings of direct infringement likewise dominate findings of indirect infringement. For every 100 findings of infringement, 81 are findings of direct infringement (literal or DOE), whereas 19 are findings of indirect infringement (primarily inducement under 271b or contributory infringement under 271c). Whether the accused infringer induced infringement under 271(b) was litigated to decision in 222 (or 6.7%) of 3316 cases from 2005-2013. Of the 222 cases, the patentee won 95 (or 42.8%). Whether the accused infringer contributed to infringement under 271(c) was litigated to decision in 140 (or 4.2%) of the cases. Of the 140 cases, the patentee won 58 (or 41.4%).

The numbers above are based on the University of Houston dataset discussed above in the section on Invalidity.

Patent Litigation Win Rate by Venue

From 2000-2010, the national average rate at which patent cases settled was 75.5%. 15% of patent cases went to final judgment. The overall win rate for patentees was 32.5%. Win rate, however, varies dramatically by venue. For example, the patentee win rate in the Northern District of Texas (which decided 405 cases) was almost five times higher than it was in the Northern District of Georgia (which decided 457 cases)! Listed below are the venues with the six highest and six lowest patentee win rates.

Top Six Patentee Win Rates
  • N. District of Texas                   55.1%
  • M. District of Florida               46.3%
  • District of Nevada                    46.2%
  • District of Delaware                 45.3%
  • District of Oregon                     45.2%
  • E. District of Texas                   40.3%
Bottom Six Patentee Win Rates
  • W. District of Wisconsin          24.0%
  • District of New Jersey               21.0%
  • W. District of Washington       20.0%
  • E. District of New York              17.6%
  • E. District of Wisconsin              17.1%
  • N. District of Georgia                  11.5%

These numbers come from a study by Professor Mark Lemley, in which he examined a dataset of 21,667 patent cases decided between 2000 and 2010 and reported the win rates for all venues that decided 25 or more cases over that 10-year period. To see the complete list of win rates, See Mark A. Lemley, Where to File Your Patent Case, 38 AIPLA Quarterly Journal 1 (Fall 2010).

Lemley also reports the average times to trial. The two quickest venues were the Western District of Wisconsin (0.67 years) and the Eastern District of Virginia (0.96 years). The two slowest venues were the Eastern District of Michigan (3.41 years) and the Eastern District of Wisconsin (3.51 years).

The national average rate at which patent cases went to trial was 2.8%. The rate was highest in the District of Delaware (11.8%) and the Eastern District of Texas (8.0%). It was lowest in the Southern District of Ohio (0.5%) and the District of Columbia (0.0%).

Jury Trial vs. Bench Trial

Over the last 5 years, patentees won 73% of jury trials and 53% of bench trials. The median jury award was 16X higher than the median bench award! See the PWC study entitled 2016 Patent Litigation Study: Are we at an inflection point? (May 2016).

Given the numbers reported in this study and also in the study discussed below under Declaratory Judgment, we predict that the percentage of trials heard by juries (75% over the last 5 years) will grow even higher.

Declaratory Judgment

If a patent suit will be decided by a jury, the patentee greatly increases its odds of winning if it files suit first, i.e., before the accused infringer files for declaratory judgment. According to a study by then Professor Moore, in cases decided by juries, when patentees file suit they win 65% of the time, but when accused infringers file declaratory judgment actions patentees win only 42% of the time. See Kimberly A. Moore, Judges, Juries, and Patent Cases-An Empirical Peek Inside the Black Box, 99 Mich. L. Rev. 365 (2000).

The first thought that arises in response to this is that suits initiated by accused infringers must tend to differ on the merits from suits filed by patentees. But here’s the rub: in bench trials, win rates do not vary with who files first. According to the study, the win rate in bench trials (about 50% for patentees) remained the same regardless of who filed first. The reason for this surprising finding is unclear. Perhaps jurors tend to believe (somewhat incorrigibly) that whoever filed the suit is the deserving party.

Injunctions & Enhanced Damages

From 2005 to 2013, patentees obtained preliminary injunctions in about 4.1% of patent cases. This figure is not much changed from years past. One study of preliminary injunctions issued in 1990-91 showed that patentees obtain them in about 5% of cases.

Patentee requests for permanent injunction were ruled on in 253 cases from the date of eBay v. MercExchange 547 U.S. 388 (2006) through 2013. Patentees won 74.7% of those requests.

From 2005 to 2013, damages were enhanced for willfulness in only about 3.2% of cases. Patentees won attorneys fees in about 3.3% of cases; accused infringers won them in about 3.6% of cases.

The 5% figure for older preliminary injunction cases comes from Jean O. Lanjouw and Joshua Lerner, Preliminary Injunctive Relief: theory and evidence from patent litigation, NBER Working Paper No. 5689 (NBER 1996). The figure for permanent injunctions is based on a supplementary dataset reported by the University of Houston. The other figures are based on the University of Houston’s dataset of 3316 cases decided 2005-2013 , discussed above in the section on Invalidity.

Foreign Owners of U.S. Patents

Foreign owners of U.S. patents are about five times less likely than domestic owners of U.S. patents to sue for infringement of their U.S. patents. Original source: Jean O. Lanjouw and Mark Schankerman, Stylized Facts of Patent Litigation: value, scope and ownership, NBER Working Paper No. 6297 (NBER 1997); Chapter: Patent Litigation – Enforcement of Patent Rights in the United States, Patents in the Knowledge-Based Economy (Nat’l Academy of Sciences 2003).

These studies are based on old patent cases, namely, those from 1975 to 1991. But assuming it’s still true that foreign owners of U.S. patents are less likely to sue, the question remains as to why. The study authors suggest that it might be harder for foreign patentees to detect infringement and also that their costs of litigation might be higher. I would add that many foreign patentees face greater uncertainty about both the costs and the benefits of U.S. litigation. Also, they may simply be less inclined to litigate for cultural reasons – Japan comes to mind.

The Doctrine of Equivalents Isn’t Very Important

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