Special theme11Special theme

An overview
of patent litigation
systems acrossjurisdictions

has been made in some jurisdictions, notably in China
where all decisions by courts are supposed to bemade publicly available online. However, in practice,coverage is below 100 percent and the data coverinfringement decisions only. Commercial data providers
have, nevertheless, tapped into this market and madesignificant investments to improve the existing data
infrastructure covering many jurisdictions.

The objective of this section is to explore how one
might statistically capture patent litigation activity.3 It
compares patent litigation systems across jurisdictions
The ability of patent right holders to enforce their intan- and documents the challenges involved in collecting
gible property rights when those rights are infringed is comprehensive and comparable patent litigation data.
an important aspect of the patent system. The value It also presents selected statistics available within theof patents will diminish if right holders are unable to United Kingdom (U.K.) and the U.S.4
enforce their patent rights. During the past decade,patent disputes have generated news headlines, andattracted considerable attention from both practitioners An overview of patent litigation systems
and policymakers. This is partly due to widely publicized,
protracted litigation between well-known technology The main objective of patent litigation is to allow patentcompanies; most notably litigation involving Apple, owners to enforce their patent claims against potenHuawei, Samsung and Qualcomm. For example, after tial infringers. As in any type of litigation, the judicial
seven years of litigation, Apple and Samsung settled their system deals with disputes that could not be settled
patent disputes in 2018.1 Furthermore, patent litigation by the parties out of court and which therefore require
has also involved patent assertion entities (PAEs), and adjudication. While the structure of patent litigation
there have been a number of litigations involving stan- proceedings in court is similar across jurisdictions,
dard essential patents, all of which have put the func- there are nevertheless important differences. It istioning of the patent litigation systems in the spotlight. therefore useful to review the basic structure common
to all patent litigation systems and highlight some ofApart from the high-profile cases reported in the media, the ways in which systems differ around the world.
many jurisdictions lack systematic data on patent
litigations. Enhancing data availability by effectively One of the most important differences in the various
monitoring the functioning of the patent litigation jurisdictions of patent litigation systems is whether
system would facilitate evidence-based policymak- they follow a unified or a bifurcated system. In a uniing. The rise in patent litigation in the United States of fied system, infringement and invalidity are dealt with
America (U.S.) over the past years is well-documented within the same proceedings, where invalidity is usually(Cook, 2007; Meurer and Bessen, 2013).2 However, for raised as a defense by the defendant to the infringeother jurisdictions, data on patent litigation activity is ment claim by the plaintiff. The judge will assess botheither incomplete or unavailable. For example, in the claims simultaneously, which implies that a patent
U.S., comprehensive data on court cases are available that is found to be invalid cannot be infringed. In a
through both public and private sources, allowing bifurcated system, there are separate proceedings indetailed analysis of litigation; while in Germany and the different venues to establish infringement and invalidity.
Republic of Korea, only incomplete data are available. In this system, invalidity is not usually an admissible
defense to an infringement claim. The defendant will
While the patent system in general makes enormous concentrate on a non-infringement defense whileamounts of information and data available to the public, potentially attempting to invalidate the patent in parallel
patent litigation has occurred largely out of sight, in at the competent venue. Since the question of validity
the privacy of the court system. As a result, it is often has a direct effect on infringement proceedings, courts
difficult to gauge the magnitude of patent litigation in the have the option to stay infringement proceedings until
various jurisdictions. There have been individual efforts validity has been decided.
by researchers to compile and analyze litigation data,
but these efforts were conducted on an ad hoc basis In most jurisdictions, validity is decided not only by(Cremers et al., 2016a; Helmers and McDonagh, 2013). the courts but also administratively by the intellectual
property (IP) office. Such administrative validity chalThere have been a number of attempts to address lenges can take the form of a post-grant opposition
this issue outside of the U.S. and substantial progress that allows third parties to challenge validity within

Introduction12

a certain period after the grant. For example, at the with one (the Intellectual Property Enterprise Court –European Patent Office (EPO), opposition to the grant- IPEC) hearing cases that are less complex and of aing of a patent can be filed within nine months of the lower value than the other (the Patents Court – PHC).
mention of the grant in the European Patent Bulletin. In Germany, some regional courts have specialist
Whether infringement and validity are dealt with in a chambers that hear patent cases. In the U.S., theunified or bifurcated system has a number of important Court of Appeals for the Federal Circuit (CAFC) is aeffects on patent litigation behavior and outcomes. For specialized court, while first-instance district courts
example, depending on the design of the bifurcated are not. The availability of different courts in which tosystem, it is possible for the infringement decision to file a claim may provide the opportunity to engage inbe made before the invalidity decision. This implies forum shopping; that is, to make a strategic choice ofthat a patent may be found to be infringed that is even- court venue. This type of behavior may have an impact
tually invalidated (Cremers et al., 2016b). Bifurcation on the litigation statistics.
may also have a direct effect on litigation behavior.
Evidence from Germany and the U.K. suggests that The costs associated with patent litigation vary signifia bifurcated system, in which infringement is usually cantly between jurisdictions. For example, in France,
decided first, leads to fewer validity challenges than cost estimates for each party range between USD
a unified system. Moreover, infringement actions are 60,000 and USD 250,000 while in Germany they range
more likely to be settled (Cremers et al., 2016b).
from USD 90,000 to USD 250,000 (Cremers et al.,2016a). These costs are low in comparison to other
The number of courts which are competent to hear jurisdictions, such as the U.K. or the U.S. where costs
patent cases differs significantly across jurisdictions. are commonly well over USD 1 million (Helmers andIn the U.S., 94 federal district courts are competent to McDonagh, 2013; AIPLA, 2017). Such large disparihear patent cases. Patent infringement claims can also ties are explained by a number of factors, including
be brought before the International Trade Commission the extent of pre-trial discovery and the role of expert(ITC), but the ITC cannot award monetary damages. witnesses, as well as the length and complexity of the
In Germany, 12 regional courts are competent to hear trials themselves.
first-instance patent infringement claims. In other jurisdictions, such as France or the Netherlands, there is Table S1 provides an overview of the main characteristics
only a single court competent to hear patent cases. In of patent litigation systems for selected jurisdictions.
the U.K., there are two courts that hear patent cases,

S1. Overview of the main characteristics of major patent litigation systems
Jurisdiction
Characteristics
Bifurcated

China

FranceGermanyJapan

Netherlands

Republicof Korea

U.K.

U.S.

Yes

No

Yes

Yes

No

Yes

No

No

Yes

Yes (EPO)

Yes

Yes (EPO)

Yes

No

No

No

No

Yes
Yes

Administrative post-grant reviewNo

Yes (EPO)

Yes (EPO,
DPMA)

Jury trial

No

No

No

Preliminary injunction

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Criminal liability

No

Yes

Yes

Yes

Yes

Yes

Yes

No

Average duration in first
instance (months)

6–18

18–24

14

12–15

12

10–18

24–36

18–42

Level of damages

Low

Average

Average

Low

Low

Low

High

High

Punitive damages

No

No

No

No

No

No

No

Yes
LimitedFee shifting
Average costs in first
instance ('000' USD)

LimitedLimitedLimitedLimited

Full

LimitedFull (itembased)

20–15060–25090–250300–500

70–250

150–400

1,000–2,000

1,000–6,000*

18 specialized+ regular
courts1

12 (+1 validity)

2

1

5

2

94

Specialized court/
judges first instancePartly

Yes

Yes

Yes

Yes

PartlyYes

NoSpecialized court of appeal

Yes

No

No

Yes

No

Yes

No

Yes

Separate trial for damages

No

No

Yes

Yes

No

No

Yes

No

Utility models

Yes

No

Yes

Yes

No

Yes

No

No

Design patents

Yes

No

No

No

No

No

No

Yes

Number of courts first instance* indicates median.
Note: EPO is the European Patent Office. DPMA is the Deutsche Patent- und Markenamt.
Source: AIPLA (2017), Clark (2011), Cremers et al. (2016a), Graham and van Zeebroeck (2014) and Thomson Reuters Practical Law.

13

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SPECIAL THEME – AN OVERVIEW OF PATENT LITIGATION SYSTEMS ACROSS JURISDICTIONSSpecial theme

WORLD INTELLECTUAL PROPERTY INDICATORS 2018

Challenges associated with compilingand analyzing patent litigation data

Board (PTAB) start off as separate petitions that may bejoined at some point in the process. This means that asimple count of IPR petitions and a direct comparison
with EPO oppositions might be misleading.

Compiling and analyzing patent litigation data is anextremely difficult task for the following reasons:(a) patent litigation is considered one of the most Court cases may involve different patent types. For
complex forms of civil litigation,
example, court cases in China, Germany or the Republic(b) litigation settled before reaching the court system of Korea may involve utility models; in China or theis not publicly documented,
U.S. they may involve design patents. To facilitate(c) private information exchanged between parties is comparability across time, courts, and jurisdictions,
not revealed to the court or, even if revealed, it is it is important to distinguish cases according to the
not recorded,
type of patent involved.
(d) information on cases is not centrally collated in many
jurisdictions (i.e., information has to be accessed The number of patent case counts is often not parfrom individual courts), andticularly informative, especially when compared over(e) there are also substantial differences between juris- time or across jurisdictions. To facilitate comparison,
dictions that affect the interpretation of observed litigation rates are often used. The main challenge inlitigation data and make any direct comparison of constructing these rates is determining their denominator; that is, the measure that is used to weigh thelitigation across jurisdictions challenging.
litigation case count. Cremers et al. (2016a), for example,
In most jurisdictions, no official aggregate statistics of use the following:
patent litigation activity are available. Consequently, it (a) annual patent filings in a given jurisdiction,is difficult to verify the completeness of any case-level (b) the total number of patents in force in a given
data set unless the data were collected directly fromjurisdiction,
court records. Collecting court records and converting (c) gross domestic product in a given jurisdiction, andthem into a statistical database of patent litigation is (d) gross domestic research and development (R&D)
a resource-intensive task.
spending in a given jurisdiction.
One of the most frequently used patent litigation
indicators is the number of cases. However, there isenormous heterogeneity in court cases, as well as inadministrative post-grant reviews, even within the same
jurisdiction. This creates challenges when constructing
case counts and comparing those counts between
jurisdictions. For example, in a bifurcated jurisdiction,
court cases will be predominantly infringement claims.
Invalidity challenges are recorded as separate cases,
even when the validity challenge occurred as a direct
response to an infringement action. In a unified system,
an infringement action with an invalidity defense would
show up only as a single case. One way to account forsuch heterogeneity is to count cases by type of claim.
Another source of heterogeneity is the number ofasserted patents. Plaintiffs may assert claims relating
to a single patent or to multiple patents in a case, andcourts may decide either to split a case that involves
several patents into separate actions or to consolidate
separate actions into a single proceeding. A similar
problem also arises in post-grant reviews. Multiple
parties can file a post-grant administrative validity
challenge on the same patent. At the EPO, for example,
if several parties oppose a given patent, these multiple
oppositions are consolidated into a single proceedingat the end of the nine-month opposition period. In the
U.S., in contrast, multiple challenges in the form of aninter partes review (IPR) at the Patent Trial and Appeal
14

A problem common to these different ways of constructing litigation rates is that their interpretation is unclear.
If a rate is low, does that mean that there are fewer
underlying disputes, or does it mean that a smaller
share of disputes makes it to court, either because they
are settled before reaching court or because patent
owners decide not to enforce their rights?
Interpreting the outcome of a court case is not straightforward either. In a validity challenge, often only a subset
of claims is challenged and invalidated. Depending on
the jurisdiction, it may also be possible for the patent
owner to amend the claims of the patent during theproceedings and thereby keep the patent alive, albeit
with a narrower scope. During infringement proceedings, it is equally possible that infringement is foundonly with respect to a subset of asserted claims. Thismeans that often the outcome of a case is not asclear cut as is required for a binary coding (win orloss) of the outcome. This situation is further complicated by the appeals process. Depending on thejurisdiction, appeals that could result in first-instancedecisions being overturned can be relatively common.
Moreover, first-instance decisions may be only partly
overturned, further adding to the complexity of theoverall case outcome.
Only court cases are observed. Any disputes thatare resolved or dropped before the plaintiff files thecomplaint with a court remain undocumented.5 Thisposes a challenge for empirical work as it is practically
impossible to account for this type of selection sinceno information on the underlying set of all patent disputes is available. Some cases are dropped or settled
immediately following the filing of the complaint. For
these disputes, often the only information available
in the case docket is the information provided in thecomplaint together with the fact that the case did notproceed. If the case is pursued further, more information
will be recorded, for example documenting a motion.
Parties have the opportunity to settle at any point in theproceedings. This means that the amount of information available regarding a specific case depends onwhether and when the parties settled the case. Onlyin the event that a case proceeds sufficiently for asummary judgment to be available, or if the judge orjury hands down a verdict, is the actual outcome of
the case observed. It is important to emphasize thatthe set of cases decided by a court represents highly
selected subsets of cases and is not representative of
all the patent disputes filed with the court, and evenless so of all the patent disputes that never reach acourt. Cases that are decided on appeal are even more
highly selected subsets of patent cases and are clearly
not representative of patent disputes more generally.
The analysis of litigation data is also challenging due tofrequent changes in the law and its application. The U.S.,
for example, has seen a number of landmark Supreme
Court decisions in the past few years that have had asignificant impact on litigation behavior.6 In addition,
institutional changes, such as the introduction of opposition procedures in Japan and the Republic of Korea
in 2015 and 2017, respectively, or the comprehensive
reform of the Patents County Court and its reconstitution as IPEC in the U.K. between 2010 and 2013, arelikely to have impacted litigation behavior. The sameis true for sweeping legislative changes, such as theone brought about by the America Invents Act (AIA) in
the U.S. in 2011. From a policy perspective, studying
the effect of such changes on litigation behavior andoutcomes is worthwhile in its own right. However, it alsomeans that any analysis of litigation data will have totake the impact of those changes on litigation behavior
into account. This is of particular concern with regard
to court decisions and institutional changes that, at
first glance, may not affect litigation directly, such aschanges to post-grant review systems.

Data availability
The main challenge in the analysis of patent litigation
lies in the limited availability of case-level informationfrom the courts. However, even when detailed records
are available, transforming these records into a sta-tistical database is fraught with difficulties. Data on
administrative post-grant validity challenges are moreeasily accessible and, to some degree, less complex,
as only validity is at issue.
In the U.S., court data are made available by the
Administrative Office of the Courts on the Public
Access to Court Electronic Records (PACER) system
to any registered user. PACER offers access to allcases heard by district courts, the CAFC and theSupreme Court. The data provided through PACER
are considered to provide complete coverage of allpatent cases in the U.S. from the mid-2000s onward(Schwartz and Sichelman, forthcoming). However,
PACER is not designed to generate data that lend themselves easily to statistical analysis. The United States
Patent and Trademark Office (USPTO) has recently
made the PACER data available for download (Marcoet al., 2017). The resulting USPTO Patent Litigation
Docket Reports Data cover the period from 1963 to2015, although the coverage of the pre-2000 data isprobably incomplete as not all records are available
in electronic format. Data on PTAB proceedings arealso publicly available from the USPTO website. While
all documents can be downloaded free of charge, thedata are not made available for download in a format
that facilitates statistical analysis. Unified Patents alsooffers free access to the data in a more user-friendly
format, but there is no bulk download functionality.7
In Germany, case-level data are available from official
court websites. However, there are a number of problems
associated with these publicly available data. There isno court diary or case index that allows verification that
all cases filed with a given court are recorded. Moreover,case documents may be redacted; for example, patent
numbers or the names of litigating parties are frequently
missing from the publicly available documents. Despite
the limitations, publicly available data for Germany havebeen used in research (e.g., Elsner and Zingg, 2018).
In the U.K., basic information on cases listed for ahearing is available from the official court diary. The
diary lists all cases for which a claim form has been
filed by the plaintiff and the court has scheduled some
type of hearing or application. The diary contains basic
information on the case, including the case number,the names of the plaintiff and defendant, and the dateof the hearing. The diary may also include informationon the status of a case – for example, if it has been
discontinued due to a settlement. The website of the
British and Irish Legal Information Institute (BAILII)
contains court records, including published judgments,
where court documents for cases listed in the court
dairy can be found. Alternative online resources are
Lexis Nexis and the Thomson Reuters Westlaw database. In the U.K., these documents usually contain15

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SPECIAL THEME – AN OVERVIEW OF PATENT LITIGATION SYSTEMS ACROSS JURISDICTIONSSpecial theme

WORLD INTELLECTUAL PROPERTY INDICATORS 2018

unredacted information on court cases. However, often
only a single document on a case is available online,
which may not provide all of the relevant information
for a given case. The fact that usually not all court
records for a given case are observed when the data
are assembled from publicly accessible online sourcesmeans that the analysis will necessarily be limited. For
example, it may not be possible to determine whether
specific motions (e.g., for a stay or summary judgment)
were filed during proceedings, especially in the eventthat they were unsuccessful. Such motions may have
impacted the parties’ litigation behavior, but it is notpossible to determine the extent of their effect fromthe data. Moreover, BAILII does not publish every
court record; decisions that are deemed to be more
important are more likely to be posted online, creating
selection bias in any data set constructed solely fromrecords available on BAILII.
Data on EPO oppositions are available in EPO’s Patent
Register, which is offered as a data set designed for the
purposes of statistical analysis. The ready availabilityof these data has led to a relatively large amount ofresearch on EPO oppositions.
Since 2014, all decisions by courts in China are publicly available on the China Judgments Online website.
In practice, coverage is still well below 100 percent.
Moreover, the data only cover infringement decisions asinvalidity challenges are decided exclusively by the China
National Intellectual Property Administration (CNIPA).
In the case of Japan, the IP High Court provides anonline database of court decisions for all courts competent to hear patent cases in Japan.
There have been a number of efforts by academic
researchers to collect data directly from the courts. For
example, Cremers et al. (2016a) collected data directlyfrom the three most important German regional courts(Landgerichte – LG) for the period 2000 to 2008. For
France, Dumont (2015) collected data from the firstinstance court in Paris for the period between 2008
and 2013. Helmers et al. (2016) collected case-level
data from the two courts competent to hear IP casesin the U.K. – the IPEC and the PHC – for the period
from 2007 to 2013.
A large number of commercial data providers and law
firms offer access to patent litigation data covering
different jurisdictions. However, access to those databases is generally expensive. In addition, information
on data coverage and methodology is not always clear.

16

The USPTO post-grant review statistics
Since the introduction of the AIA in the U.S. in 2011, it
has been possible to challenge the validity of patents
granted by the USPTO through four different avenues:
post-grant review, inter partes review, covered businessmethod and ex parte reexamination. There has been adramatic increase in PTAB trials since the implementation of the AIA (see figure S2). In contrast, ex partereexamination has declined. However, the decrease in
ex parte reexamination has been far less substantial
than the increase in PTAB trials. This implies that the
total number of post-grant challenges at the USPTO
has risen substantially.
As mentioned above, not all IPRs are reviewed by PTAB.
Only those IPRs that have a reasonable likelihood of
success are instituted and reviewed by PTAB. Figure
S3 shows both the total number of petitions and thenumber of petitions instituted, which follows a similar
trend. However, starting in the third quarter of 2014,
the share of instituted petitions dropped and continued
to hover around 55 percent of total petitions for theremaining period. On average, PTAB made decisions
on approximately 75 percent of all petitions instituted
between 2012 and 2015. The decrease in the numberof decisions since 2015 is due to data truncation.
Figure S4 shows a breakdown of petitions and institution decisions by technology area for the period from2012 to 2016.8 The largest number of petitions was in
the field of computer technology (670), followed bytelecommunications (308) and digital communication(248). The share of petitions instituted varied from 94.4
percent in surface technology to 38 percent in otherconsumer goods. Among the top five technologies
with the largest number of petitions, telecommunications has the highest institution rate (61.7 percent), followed by computer technology (55.2 percent), medical
technology (52.9 percent), digital communication (51.6
percent) and audio-visual (51.2 percent).
Figure S5 shows the PTAB decisions for all IPRs instituted for the period from 2012 to 2016. For the majorityof the fields of technology, the invalidation rate wasover 80 percent. Among the top five fields of technology with the largest number of decisions, electricalmachinery (84 percent) had the highest invalidation
rate, followed by transport (81.3 percent), telecommunications (80.2 percent) and computer technology(79.2 percent).

E
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C ume am
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er
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Number of petitions

Number of IPR petitions

Number of trials andreexaminations

S2. Post-grant PTAB trials and ex parte reexaminations, 1999–2017

1999

PTAB TRIALSPETITION

INSTITUTED
2000

2012 Q3

INSTITUTED
2001
2002
2003

2013 Q3
2004
2005
2006
2007
2008
2009

2014 Q3

2010

Special theme

SPECIAL THEME – AN OVERVIEW OF PATENT LITIGATION SYSTEMS ACROSS JURISDICTIONS

2,000

1,500

1,000

500

0
2011
2012

2015 Q3

2013
2014
2015
2016
2017

Year

EX PARTE REEXAMINATIONS

Source: https://ptabdataui.uspto.gov/#/documents.

S3. Total number of IPR petitions

500

400

300

200

100

2016 Q3

Filing date

DECISION

Source: Helmers (2018).

S4. IPR petition decisions by field of technology, 2012–2016

800

600

400

200

0

Field of technology

INSTITUTION DENIED

Source: Helmers (2018).

17

S5. IPR institution decisions by field of technology, 2012–2016
Number of petitions

400
300
200
100

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Field of technology

VALID

INVALID

Source: Helmers (2018).

The EPO post-grant
opposition statistics
At the EPO, oppositions can be filed within nine monthsof the mention of the grant in the European Patent
Bulletin. All oppositions that are filed during that time
period are combined at the end of the nine-month
period before oppositions proceedings begin. Thismeans that the number of oppositions is not directlycomparable to the number of IPRs because separate
petitions for IPR for the same patent can be filed but
are not necessarily combined into a single proceeding.
Figure S6 shows that the number of oppositions held
relatively steady, at around 3,000 per year, between
2012 and 2014. The decline during 2015 and 2016 isdue to truncation of the available data.
S6. Total number of EPO oppositions, 2012–2016
3,000

Number of oppositions

Special theme

WORLD INTELLECTUAL PROPERTY INDICATORS 2018

2,000

1,000

2012

2013

2014

2015

2016

Filing date

Source: Helmers (2018).

The outcome of the EPO opposition proceedings by
field of technology is presented in figure S7. Opposition
to the granting of an EPO patent can result in the pat18

ent being invalidated, maintained in its current form or
maintained in amended form. Patents related to medical
technology attracted the largest number of oppositions(1,029), followed by pharmaceuticals (974), transport (689)
and basic materials chemistry (660). In contrast, there
were relatively few oppositions in computer technology,
telecommunications and digital communication, which isprobably explained by differences in the granting practices of software-related patents between the USPTO
and the EPO. The distribution of outcomes is fairly evenacross technology areas; on average around 32 percent
of opposed patents were invalidated, 32 percent were
upheld and 36 percent were upheld in amended form.

U.K. and U.S. patent litigation statistics
The number of patent litigation cases filed in the U.S.
grew gradually between 1999 and 2009. However,between 2009 and 2013 there was a period of considerable growth in the number of cases filed (seefigure S8). A similar trend is observed for the U.K.,
where significant growth in the number of cases filed
occurred between 2010 and 2012 (see figure S10). The
strong growth in the number of cases filed in boththe U.K. and the U.S. occurred during the so-called“global patent wars.”
As mentioned above, cases count data are often normalized using the number of filings, patents in force,gross domestic product, etc. Figure S9 presents
data on the number of cases filed in the U.S. district
courts normalized by patent grants and patents inforce. Normalized cases count data follow the same
overall trend – significant growth between 2009 and2013 with a decline thereafter.

Special theme

SPECIAL THEME – AN OVERVIEW OF PATENT LITIGATION SYSTEMS ACROSS JURISDICTIONS

Number of oppositions

S7. EPO opposition outcomes by field of technology, 2012–2016
1,000
800
600
400
200
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ic
on me
du nt
ct
or
M
s
ea Op
su tic
re s
M
m
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rg ca C ent
an l t oic ec ntr
fin hn oloec lo
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ol rma noloec cul eu gyBaar ticsi
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Su M er ch er
rfa at ials em s
ce erich istte als, em ry
ch m isCn
En he olo eta try
vi mi gy llurro ca ,g
nm l e co yen ng atinita ne glt
ec erin
hn g
En
o
g
Te in
H logyM
xt es, a andile
pu chi lin
an m ne g
O d p ps toth,oer ape tur ls
sp r m bin
ec a es
Th ia chie lM rm ma nes
ec acha l p hin
ni roc es
ca el e ssle esm
O Fu T enther rnit ran ts
uco re spo
ns , g rt
C um amiv er es
il
en go
gi od
ne s
er
in
g

0

Field of technology

VALID

INVALIDAMENDED

Source: Helmers (2018).

S8. Number of patent infringement cases filed in the U.S. district courts, 1999–2016
7,000

Number of cases

6,000
5,000
4,000
3,000
2,000
1,000

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

Year
Source: USPTO Patent Litigation Docket Reports Data.

Normalized number of cases

S9. Number of patent cases filed in the U.S. district courts per 100 patent grants and 1,000 patents
in force, 1999–2016
2.5
2.0
1.5
1.0
0.5
0.0
1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

Year
CASES PER 100 GRANTSCASES PER 1,000 IN FORCE

Source: USPTO Patent Litigation Docket Reports Data and Historical Patent Data Files.
19S10. Number of patent cases filed in the U.K.
patents court and IPEC, 2007–2013

S11. Outcome of cases filed in the U.K. andthe U.S.

120

U.K. patents court and IPEC, 2007–2013
250

80

Number of cases

Number of cases

40

200
150
100
50

0
2010

2011

2012

0

2013

Filing year

O
th
er

2009

In
va
lid
ity

2008

In
fri
ng
em
en
t

2007

Claim
Source: Helmers (2018).

DECISIONSETTLED

U.S. district courts, 2010–2016
30,00020,00010,000

O
th
er

In
va
lid
ity

0
In
fri
ng
em
en
t

Figure S11 provides data on cases broken down by
types of complaint: infringement, invalidity and other.
The “other” category contains a range of patent-related
claims, such as disputes regarding inventor- or ownership, false patent marking, licensing contracts, etc. The
figure also distinguishes between cases that ended
with a decision by the court or a settlement/dismissal.
In both jurisdictions, the share of cases determined bycourt decision is very small. For example, in the U.S.
around 10 percent of cases were decided in some way
by the courts, while in the U.K. the figure was around
26 percent. Complaints in the U.S. almost all allege
infringement of a patent, while a small share of total
cases relates to an allegation of invalidity. In contrast,
around 30 percent of cases in the U.K. start with avalidity challenge. The share of cases decided by the
courts in the U.K. is larger for validity challenges (32percent) than for infringement claims (20 percent).

Number of cases

Special theme

WORLD INTELLECTUAL PROPERTY INDICATORS 2018

Claim

DECISIONSETTLED

Source: Helmers (2018).

Figure S12 presents data on the interaction between
litigation in court and administrative post-grant reviews. Conclusions
Interaction occurs when a patent that is litigated incourt is challenged through an IPR in the U.S. or an This chapter has provided an overview of patent litigaopposition at the EPO. The figure shows the number tion systems across jurisdictions. It has documentedof court cases that have a parallel administrative valid- common aspects applicable to court proceedings in
ity challenge at the EPO for U.K. patents and at the different jurisdictions and outlined how the patent litigaUSPTO for U.S. patents. In the U.S., parallel IPRs are tion systems differ. It has also outlined the challenges
filed mainly in infringement cases by the defendant involved in collecting comprehensive and comparable
in an attempt to invalidate the patent administratively patent litigation data from the various jurisdictions. It is
and thereby achieve a dismissal of the infringement important to understand the litigation system in ordercase in court. In the U.K., a relatively large number of to properly interpret the data.
cases that challenge a patent’s validity in court also
challenge the patent’s validity administratively at the To monitor the functioning of the patent litigation
EPO. Because courts in the U.K. often do not stay system, data availability is crucial for evidence-based
proceedings if an opposition is pending at the EPO, policymaking. However, data availability and accessthis strategy allows the plaintiffs to use all available remain a major obstacle to the analysis of the patentvenues to invalidate a patent.
litigation system. The U.S. has made significant efforts
20Special theme

SPECIAL THEME – AN OVERVIEW OF PATENT LITIGATION SYSTEMS ACROSS JURISDICTIONS

S12. Parallel IPRs (U.S.) and EPO
oppositions (U.K.)
U.K. patents court/IPEC and EPO oppositions, 2007–2013

Number of cases

20

15

10

5

O
th
er

In
va
lid
ity

In
fri
ng
em
en
t

0

Claim

INVALIDVALID

AMENDED

U.S. district courts and PTAB IPRs, 2012–2016

Number of cases

400

300

200

100

O
th
er

In
va
lid
ity

In
fri
ng
em
en
t

0

Claim

INVALID

VALID

Source: Helmers (2018).
1

to make patent litigation data available to researchersand policymakers. For example, the efforts of the USPTO(Marco et al., 2017) provide a useful illustration of how
to make patent litigation data available for statisticalanalysis. Beyond the U.S., there is a lack of publicly
available official data. As an initial step, patent offices
could develop statistical databases of administrative
procedural information (e.g., detailed information on
oppositions, invalidation, reexamination, etc.). With
regard to court records, developing infrastructure to
maintain a register of all patent-related cases could
be a worthwhile route to take.

2

3

4

5

6
7
8

See www.nytimes.com/2018/06/27/technology/applesamsung-smartphone-patent.html for more details.
See https://obamawhitehouse.archives.gov/
sites/default/files/page/files/201603_patent_
litigation_issue_brief_cea.pdf and https://bits.
blogs.nytimes.com/2010/03/04/an-explosionof-mobile-patent-lawsuits/ for examples.
This section is based on a paper prepared byProfessor Christian Helmers of Santa Clara
University. For further details, see WIPO’s
Economic Research Working Paper No. 48.
The U.K. consists of three distinct jurisdictions:
England and Wales, Northern Ireland and Scotland.
Throughout the remainder of this chapter, we referto the jurisdiction of England and Wales as the U.K.
Lemly et al. (2017) estimate, based on survey results
for the U.S., that approximately 70 percent of patent
infringement claims are resolved out of court.
For an overview, see https://writtendescription.
blogspot.com/p/patents-scotus.html
See https://portal.unifiedpatents.com.
See www.wipo.int/export/sites/www/ipstats/en/statistics/patents/pdf/wipo_ipc_technology.
pdf for details on technology classification.

21

Special theme

WORLD INTELLECTUAL PROPERTY INDICATORS 2018

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