Lies, Damn Lies, and Statistics

by Lee Gesmer on October 19, 2006

I’ve been meaning to post some statistics reported by Price Waterhouse Coopers at the MCLE 9th Annual Intellectual Property Conference earlier this year. PWC has done a rigorous study of patent and trademark cases in the Federal District Courts and at the Court of Appeals for the Federal Circuit (CAFC) over the last 25 years. A few highlights and trends:

  • In 2005, 4% of patent cases and 1.5% of trademark cases went through trial. (Presumably the balance were resolved via settlement or summary judgment).
  • Juries award more damages in patent cases than bench trials. On the other hand, bench trials are more popular in trademark cases.
  • The CAFC is a tough court: only 30% of damage awards are affirmed by the CAFC.
  • Patent damage awards far exceed trademark damage awards.
  • Patent awards’ fastest growth has been in the computer business services and electronics components sectors.
  • Reasonable royalties (rather than lost profits) has become the most frequent measure of damages awarded in patent cases. (This may reflect the fact that more plaintiffs are nonpracticing inventors (sometimes referred to as “patent trolls“).

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