An ongoing project reviews patent claim construction orders adding the salient features into a thesaurus of claim constructions. Additionally, I characterize the constructions according to several factors including the ‘prevailing construction’, or more simply, ‘who won.’ Presented here is a summary chart of a limited set of outcomes.
The results show that a Patentee prevails 37% of the time; the Accused Infringer 19% of the time, and the Court directly analyzes and crafts a construction in 44% of the instances. These numbers fluctuate slightly as new Markman orders are abstracted, however the prevailing relationship between Court, Patentee and Accused Infringer has been consistent. It may not be surprising that Accused Infringers have such limited success, but it is surprising that Patentees don’t do better.
That this occurs is clear, but why the outcomes occur this way is not. A few Markman orders include observations by the Court on the Markman process, revealing insight into a difficult task. An example is:
"In this case, the parties have raised sophistry to a premiere art. As one travels life’s byways, one often encounters problems akin to picking flyspecks from pepper. The attorneys in this case have left no doubt about their ability to do so, especially where the same attorneys represent two different accused infringers that attach different meanings to the same phrases."
Claim Construction Order in Fellowes, Inc. v. Michilin Prosperity Company,12/15/2006
I bring this up today since it fits the context of a recent paper by Dave Schwartz of John Marshall Law School, “Practice Makes Perfect? An Empirical Study of Claim Construction Reversal Rates in Patent Cases”(1), reported by Dennis Crouch.
(1) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1012949