By Jason Rantanen
Last fall, I presented a set of data on inequitable conduct pleadings at the America Invents Act: One Year Later conference at the Indiana University Mauer School of Law. That data revealed two significant findings: first, that the rate at which inequitable conduct pleadings rose between 2000-2008 was much slower than previously believed (and never came close to the alleged 80% of all patent cases) and second, that since 2008 the rate at which inequitable conduct is pled has fallen substantially. The results of that study have since been published in IP Theory; you can read the relatively short article here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2266041.
Since the article only included data up to the end of 2012, however, I thought it would be useful to update it to include 2013 data. The below chart compares the number of patent cases in which an Answer was filed to the number of patent cases in which an Answer was filed containing the term "inequitable conduct" for each year based on searches performed in LexMachina. The 2013 data is as of 9/18/2013.
This chart indicates that the rate at which inequitable conduct is being pled continues to decline (at least measured through this crude metric), although it may have reached a plateau. I've also generated a similar chart that shows Answers containing "inequitable conduct" as a percentage of all "Answers" in patent cases that are searchable using LexMachina; it shows a similar pattern.
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More details about the search for the curious: To obtain the above chart, I searched LexMachina for answers in patent cases that contained the terms "inequitable conduct" and patent, limited by the year the document was filed, and sorted the results by cases. I then repeated the searches without the term "inequitable conduct" to obtain the number of patent cases in which answers were filed in a given year. Finally, I divided the number of cases with inequitable conduct answers by the number of cases with answers to get a percentage. That percentage, which responds to the question "How many patent cases in which answers were filed in a given year involved answers containing the term "inequitable conduct," is what is reported below. (Full details on this search, as well as a parallel search in Westlaw, are provided in the article).
For folks who like to replicate the results on their own, note that the searches for 2000-2012 data were performed in early 2013; since then LexMachina has revised its user interface and there is not currently a way to exclude hits based on docket entries alone (which has the effect of artificially inflating the denominator). Until LexMachina reinstitutes this option, the above described search methodology isn't reliable for LexMachina for time periods in which large numbers of Answers are not searchable (i.e.: pre-2007).
Too bad it probably won’t last too long.
Perhaps another reason for the downward trend is the very poor reception many courts give to IC allegations that are less than outright fraud, particularly IC allegations based on failure to disclose material information without a real smoking gun like an email or letter plainly evincing an intent to deceive. Unless you have provable fraud-like claims, an alleged infringer can look really bad pleading IC in many district courts.
this is very good news
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