03 November 2013

Patent Jurimetrics

'Does Familiarity Breed Contempt Among Judges Deciding Patent Cases?' by Mark A. Lemley, Su Li and Jennifer M. Urban offers 
the first comprehensive look at how a district judge’s experience affects decisionmaking in patent cases. We find that that there is a strong, statistically significant relationship between a judge’s experience and case outcome: more experienced judges are less likely to rule for the patentee. Notably, the relationship exists for rulings finding noninfringement; judicial experience had no relationship to the likelihood a judge would find a patent invalid. The relationship appears to hold across judges, rather than to be driven by the rulings of particular judges. Beyond individual judges, some technologies (biotechnology, mechanics) are associated with more patentee wins, while patentees are less likely to win computer hardware and software cases. Some district courts (Delaware, New Jersey) are more likely to find patents infringed. By contrast, perhaps surprisingly, we find no significant relationship between litigation in the Eastern District of Texas and a judge’s ruling for or against the patentee. Finally, we find that suing on multiple patents is associated with an increased likelihood that at least one patent will be found to be infringed.
Our results challenge what has been an implicit assumption in the literature and discussion that particular districts are biased in a particular direction, driving forum shopping. And they test for the first time the implicit assumption in the literature, in calls for specialized patent trial courts, and in the Patent Pilot Program, that experience with patent cases at the trial level will lead to different — usually assumed to be “better” — outcomes from what we see from generalist courts. Our results suggest that there is a difference, but that “better” may be in the eye of the beholder. They suggest some sort of learning effect among district court judges across the country, and that patentees benefit from litigating before inexperienced judges, at least on issues of infringement. Depending on the reason for this effect, adoption of a specialized patent trial court might help accused infringers but not patentees, raising broader questions about patent reform and how to measure the value of an expert court.
They conclude that
The more experience judges have with patent cases, the less likely they are to rule for patent owners. Our finding is a strong and highly significant finding, robust across districts, across time, and across areas of technology. It has potentially profound implications for patent law, where it might lead us to question the way we design patents, and for the broader project of judicial specialization, which may have unintended substantive consequences.