Trends in Patent Litigation

Patent litigation has undergone two changes recently with the Federal Circuit substantially restricting the Doctrine of Equivalents as well as the spawning of the Markman Hearing. The Markman Hearing is a mini-trial where evidence is introduced restricted to the issue of claim interpretation. It results in a claim interpretation issued by the judge, and usually causes one party or the other to be put into a bad position in terms of winning the case. The relatively new case law on the Doctrine of Equivalents makes it more difficult to get a judgment of infringement if the accused device does not literally infringe the claims. This is why it is important to use an experienced patent attorney to write your patents, but even that is no guarantee.

Whether this change is good or bad depends upon whether you are the patent holder or the accused infringer. Restriction of the Doctrine of Equivalents has made it easier for well-counseled infringers to avoid patent infringement and design around patents. If you are thinking of commencing business in an area where others have patents, you should look into engaging Mr. Fish to do validity and infringement studies and then counsel you in a design around effort.

The good news is that the restriction of the Doctrine of Equivalents and the now-extensive use of the Markman Hearing have made patent litigation cheaper. Patent litigation used to be the sport of kings. Now it is more often resolved through a Markman Hearing which results in the judge's pronouncement regarding the proper interpretation of the claims, followed by a motion for summary judgment, and finally followed by an appeal brought by the loser on summary judgment. Cases rarely go to trial; after the Markman Hearing, the judge’s interpretation of the claims usually completely undermines the case of the losing party. For a real-life example of a Markman Hearing outcome, see Look Before You Leap.

Twice as many cases are now resolved by summary judgment at the district court level than was the case before the Markman Hearing came into existence. The exact statistics are that after a Markman Hearing, 24% of cases are resolved at the district court level by summary judgment. This result compares to just 12% before the advent of the Markman Hearing.

So patent infringement litigation is not as expensive as it used to be, but if you are a patentee, your chances of obtaining a judgment of infringement are also less. All the same, it can be extremely valuable to your business to use an experienced patent attorney to enforce and defend your patent claims. For an interesting example of how an experienced attorney can make a difference, see My Finest Hour.