ANNUAL GLOBAL PATENT LITIGATION REPORT …

1 //////////////////////////////////////// //////////////////////////////////////// //////////////////////////////////////// ////////////////////////////////////. ANNUAL GLOBAL PATENT . LITIGATION REPORT 2014 , PATENT , Trademark & Copyright Journal GLOBAL IP Project S-3. GLOBAL IP PROJECT: ANNUAL GLOBAL PATENT LITIGATION REPORT 2014 . G l o b a l Tr e n d s Country Spotlight A. Alleged Infringers Are Becoming More Proactive .. S-5 A. Germany .. S-30. B. The Trend Toward IP-Specialty Courts Continues .. S-5 1. PATENT Infringement and Validity Win Rates .. S-30. C. The Unified PATENT Court (UPC) May Lead to 2. Time From Filing to Decision on the Merits .. S-33. Increased Forum Shopping in Europe .. S-7 3. S-33. D. LITIGATION in China Continues To Increase and B. China .. S-34. Leads a GLOBAL Movement of PATENT LITIGATION to 1. PATENT Infringement and Validity Win Rates.

2 S-34. Asia .. S-7. 2. Time From Filing to Decision on the Merits .. S-34. E. America Invents Act (AIA) Has Given LITIGATION a More Bifurcated Appearance .. S-7 3. S-34. F. The Negative Climate in the for Non- C. United States .. S-39. Practicing Entities (NPEs) and the Availability of 1. PATENT Infringement and Validity Win Rates .. S-39. Injunctive Relief and Profits Damages Abroad Suggest NPEs Will Begin to Look Outside the .. S-7 2. Time From Filing to Decision on the Merits .. S-39. 3. S-42. GLOBAL PATENT LITIGATION Data Methodology and Data Sources A. Comparison of Country PATENT LITIGATION Systems .. S-7. Explanation .. S-42. B. ANNUAL PATENT LITIGATION Filings .. S-9. C. PATENT Owner Infringement and Validity Win GLOBAL IP Project Rates .. S-13. D. Largest Damage Awards Globally .. S-13 Participating Firms and S-43. E. Most PATENT Owner-Friendly Courts in the World Using Objective Metrics.

3 S-20. Reproduced with permission from BNA's Pat- F. Most Patentee Owner-Unfriendly Courts in the ent, Trademark & Copyright Journal, 89 PTCJ. World Using Objective Metrics .. S-20 S-5, 2/13/15. Copyright 2015 The Bureau of G. Comparative Patentee Win Rates by Country by National Affairs, Inc. (800 372 1033). Industry (Infringement Win Rate Only in Bifurcated Countries) .. S-20. PATENT , TRADEMARK & COPYRIGHT JOURNAL ISSN 0148-7965 BNA 2-20-15. S-4. 22. Semiconductor Patentee Win Rate .. S-28. LIST OF EXHIBITS. 23. Other'' Patentee Win Rate .. S-29. 1. First-Instance PATENT LITIGATION Filings in China .. S-6 24. Bifurcation of PATENT Infringement Cases From the Du sseldorf First-Instance Court, 2012 .. S-31. 2. First-Instance PATENT LITIGATION Filings .. S-6. 25. Bifurcation of PATENT Infringement Cases from 3. Ex Parte Reexamination Petition Filings.

4 S-8 the Du sseldorf First-Instance Court, 2012, Invention 4. Inter Partes Review Petition Filings .. S-8 Patents Only .. S-31. 5. Comparison of Country PATENT LITIGATION Systems .. S-10 26. PATENT Validation Rate for Invention Patents That Have a PATENT Infringement Case Decided by 6. ANNUAL Judicial PATENT Infringement LITIGATION the Du sseldorf First-Instance Court in 2012 .. S-32. Filings 2008-2012 for Category 1 Countries (0-1000. ANNUAL PATENT LITIGATION Filings) .. S-11 27. Comparing Validation Rates Between European PATENT Office (EPO) Opposition Actions and BPG. 7. ANNUAL Judicial PATENT Infringement LITIGATION Cancellation Actions, in 2012 for First-Instance Filings 2008-2012 for Category 2 Countries Invention PATENT Infringement Decisions on the (101-5000 ANNUAL PATENT LITIGATION Filings) .. S-11. Merits in 2012 .. S-32. 8. ANNUAL Judicial PATENT Infringement LITIGATION 28.

5 Procedure Duration in Different German Filings 2008-2012 for Category 3 Countries (501+. Jurisdictions for First-Instance Invention PATENT ANNUAL PATENT LITIGATION Filings) .. S-12. Infringement Decisions in 2012 .. S-33. 9. Busiest Court and Percentage of Cases Filed 29. Bifurcation of First-Instance Invention PATENT Going Through to Decision on the Merits .. S-14. Infringement Cases from Beijing 1st Intermediate 10. PATENT Owner Infringement Win Rates in People's Court, 2012 .. S-35. First-Instance PATENT Infringement LITIGATION 30. Bifurcation of First-Instance Utility Model Decisions on the Merits (2006-2012) .. S-15. Infringement Cases From Beijing 1st Intermediate 10A. PATENT Owner Infringement Win Rates in People's Court, 2012 .. S-35. First-Instance PATENT Infringement LITIGATION 31. Patentee Infringement Win Rate in First- Decisions on the Merits (2006-2012) by Unified and Instance Invention PATENT Decisions on the Merits in Bifurcated Systems.

6 S-15. China, in 2012 .. S-36. 10B. PATENT Owner Infringement Win Rates in 32. Patentee Infringement Win Rate in First- First-Instance PATENT Infringement LITIGATION Instance Utility Model Decisions on the Merits in Decisions on the Merits (2006-2012) by Common China, in 2012 .. S-36. Law and Civil Law Systems.. S-16. 33. Validation Rate in SIPO Validity Decisions on 11. PATENT Owner Validity Win Rates (2006-2012) .. S-17. the Merits, 2012 .. S-37. 12. Largest Damage Awards Globally .. S-18. 34. Procedure Duration of First-Instance SIPO. 13. Most PATENT Owner-Friendly Courts in the World PATENT Reexamination Board Decisions on the Using Objective Metrics .. S-19 Merits in China in 2012 .. S-37. 14. Most Patentee Owner-Unfriendly Courts in the 35. Procedure Duration of First-Instance PATENT World Using Objective Metrics .. S-19 Infringement Decisions on the Merits in China in 2012.

7 S-38. 15. Biotechnology Patentee Win Rate .. S-21. 36. Bench and Jury Patentee Win Rates in Most 16. Chemical/Materials Engineering Patentee Win Active Federal District Courts (By PATENT Rate .. S-22. Infringement LITIGATION Filings) .. S-40. 17. Electrical Patentee Win Rate .. S-23. 37. Outcomes of PTAB Final Written Decisions .. S-40. 18. Mechanical Patentee Win Rate .. S-24. 38. Time From Filing to Termination by Contested 19. Pharmaceutical Patentee Win S-25 Judgment in the 10 Most Active District Courts 20. Medical Device Patentee Win Rate .. S-26 (in Months) .. S-41. 21. Computer Hardware/Software Patentee Win 39. PTAB Final Written Decision Timing .. S-41. Rate .. S-27. 2-20-15 COPYRIGHT 2015 BY THE BUREAU OF NATIONAL AFFAIRS, INC. PTCJ ISSN 0148-7965. S-5. GLOBAL IP Project ANNUAL GLOBAL PATENT LITIGATION REPORT 2014 more harmonized IP framework and emerging markets grow in size and importance.

8 A. Alleged Infringers Are Becoming More Proactive Both I. Overview of GLOBAL Trends1 patentees and alleged infringers have increasingly more oday, corporations face a panoply of options on T how and where to litigate against competitors. Pat- ent owners and alleged infringers often face off in multiple countries with varying legal systems and con- judicial and administrative options on where to launch a first strike.'' Traditionally, alleged infringers have hesitated to initiate defensive first strikes because of a preference not to litigate at all and to be left alone.''. sequent varying results. Although patents remain a na- But there is a noticeable trend among alleged infringers tional property right, PATENT owners and alleged infring- of becoming more proactive, possibly spurred on by ers must develop a GLOBAL strategy for IP LITIGATION to high success rates in some jurisdictions.

9 The best GLOBAL maximize resources and leverage LITIGATION results for example of this proactive behavior is in London, where the best business outcome. Understanding the attri- the patentee win rate is relatively low 27% (35/129), but butes of different legal systems and procedures is only the plaintiff win rate is 54% (69/129) and the alleged in- one part of a complex process for developing a winning fringer plaintiff win rate is 77% (50/65).3 Of the 129 pat- strategy. Companies must also understand the costs, ent LITIGATION decisions for the time period 2006-2013, risks, and benefits of bringing an action in various 51% have an alleged infringer plaintiff (66/129).4 The market-driven countries. As a result, the question for best example of this behavior is represented by the litigants now is Where in the world should I sue?'' high rate of filings of inter partes reviews (IPRs) by al- An early win may be crucially important, whether for leged infringers and third parties, where the petition the patentee or the alleged infringer.

10 In the GLOBAL IP grant rate is 77%.5 So far, the PATENT Trial and Appeal Project, the term first-strike'' strategy is used to de- Board (PTAB) has held 68% of the challenged claims scribe the approach of trying to obtain a good first re- sult that can be leveraged to favorably resolve parallel Several countries have double-tracking'' where a LITIGATION conflicts in other countries. While the pros- PATENT claim's validity may be disputed in both a judi- pect of litigating in several countries simultaneously cial proceeding and an administrative proceeding, in can be overwhelming, winning a first LITIGATION a first some jurisdictions even This provides strike'' provides significant leverage in settling dis- alleged infringers with two forums in which to attack putes globally. patents. With the availability of comparative intra- This first GLOBAL IP Project ANNUAL REPORT based on country and inter-country data, which will soon be analysis and insight from practicing lawyers around the issue-specific because of resources such as the world and objective data2 compares qualitative and DARTS-IP database, it will become more apparent to al- quantitative information from 19 jurisdictions to pro- leged infringers that the option is available for them to vide PATENT owners and PATENT challengers substantive, bring proceedings proactively to get a favorable deci- fact-based information to use as they decide how to best sion they can then use in negotiations with the patentee.