How is Patent Litigation like Baseball?

By Jason Rantanen

I’m a moderately-dedicated baseball fan*, so I’ve been listening** to quite a few baseball games over the past few weeks.  And as I’ve been listening to the games, it’s struck me that in many ways, patent litigation is a lot like a baseball game well beyond the Cubs reference.  Both are a game of one against many on a field where the participants operate under asymmetric rules.  For both, too, the individual success rate in an active contest isn’t all that high.

One of the most distinguishing aspects of baseball is the challenge an individual batter faces in actually achieving a positive result at the plate.  Most of the time, players don’t actually get a hit; a batting average of over .300 is considered exceptional.  This statistic has sparked the idea that baseball is a game of failure: there are numerous references to even the greatest baseball legends being failures 7 times out of 10.  Even when other measures of success are taken into account (such as drawing a walk), it’s still the case that most of the time a batter will make an unproductive out.

But, as other folks have pointed out, a batter’s performance is not so much a question of the individual triumph (or failure) of the batter; rather, it is a contest between the batter and the pitcher.  When the batter loses, the pitcher wins.

Or more accurately, when the batter loses, the other team wins.  This is a large part of what makes baseball so fascinating to me: it’s a lone batter facing off against a whole squad of nine opponents.  One against many.  Even the best players in the world are still the underdog here: Ted Williams, the all-time leader in getting on base, did so about 48% of the time over his career.

So too in patent law.  A patent holder is only one against many.  True, like a batter, the patent holder has an advantage: the patent, with its presumption of validity.  But there is only one patent holder and there is a whole world of potential infringers.  Including many creative, knowledgeable, and smart players who can develop arguments and theories and ideas that the patent holder could never have anticipated.

The end result is that perhaps we shouldn’t be all that surprised when patent holder success rates in infringement litigation tend to look a lot like batting averages.  Added to the challenge of one patent holder against many possible infringers is the difficulty of actually winning a patent suit: there are a multitude of possible validity challenges that an alleged infringer might raise and the patent holder must win on them all – and prove infringement – in order to prevail.   As in baseball, patent infringement litigation is an asymmetric contest with different rules for the batting team and the fielding team.***

None of this is to discount the very real challenges that our patent system faces, particularly when it comes to anything other than substantive merits determinations by a court.  We don’t really have a good sense from an empirical standpoint about the nature of post-filing settlements, let alone those that occur prior to the filing of the complaint.  And none of this should suggest that patent litigation is working as optimally as it might; it’s still extremely costly, complex litigation and there’s always room for improvement in patent law.  But thinking of patent litigation as akin to a baseball game also might help to put the Allison/Lemley/Schwartz study I posted about earlier this week in some context.

*By which I mean that I watch a fair number of Giants games via MLB TV, listen to many more, and have been to a dozen games or so over the last seven years.  Of course, it’s easy being being a fan when the team you follow makes it to the World Series three times out of the past five years…

**A cost of getting rid of cable tv is that one can only listen to postseason baseball games that are currently being played.  Which is actually my preferred way to follow the game.  Except for the constant repetition of political advertisements directed at a state in which I do not live.

***There are another analogies I could draw, such as the role of money in paying for players in the game.  Of course, that didn’t work out to well for the Dodgers this year…

Also, at some point the analogy stops working; a baseball game in its entirety is not all that asymmetric.  The team that bats will get its turn in the field.  The team that fields will get its turn at bat.  The analogy works best when talking about batting success.

32 thoughts on “How is Patent Litigation like Baseball?

  1. 12

    Patent prosecution is more like baseball because there are long periods of waiting for something to happen, punctuated by brief flurries of activity subject to arcane rules. However, unlike baseball, the pitcher can keep pitching prior art at you forever.

  2. 10

    A critical aspect to the integrity of the game is that the Umpires are neutral – with no animus for – or against – the pitcher or the batter.

    There is nothing that will rile a crowd faster than an Umpire who is predisposed towards one side or the other.

  3. 8

    Jason, I like listening to baseball on the radio too, but my preferred way of watching the game is to be at the ballpark, eating a hot dog and drinking a beer.

    Turning the patent law, in some way your post is old school and out of date. You have to take into consideration that the modern world of patent law has changed with the advent of IPR’s. Everything is different. No longer do we have the presumption of validity. No longer do we have fair claim constructions. Instead we have preponderance of evidence and broadest reasonable interpretation.

    From my brief experience with the IPR’s, let me say, I think the system is rigged against the patent holder and this is caused primarily by the lower standard of proof and the use of broadest reasonable interpretation. Claims are construed to read on the prior art, and the burden of proof is easily met.

    We have destroyed our patent system with the creation of the IPR. It is time now for all of us to say enough. We have to get rid of IPR’s one way or the other.

    1. 8.1

      Yup. And CJ Smith hiring a bunch of people that are anti-patent doesn’t help.

    2. 8.2

      Claims are construed to read on the prior art, and the burden of proof is easily met.

      Just amend the claims to avoid the prior art like people have been doing since forever.

      What’s the problem?

      1. 8.2.1

        MM, problem?

        1. It has been proven practically impossible to amend the claims in an IPR.

        2. Broadest reasonable interpretation has nothing to do with issued patents.

        3. Interpreting the claims to read on the prior art will force an amendment to distinguish the prior art – but this could result in intervening rights and the loss of substantial past damages to the patentee. It is not a matter to be joked about.

        1. 8.2.1.1

          Ned: 1. It has been proven practically impossible to amend the claims in an IPR.

          How in the world was that “proven”?

          Interpreting the claims to read on the prior art will force an amendment to distinguish the prior art – but this could result in intervening rights and the loss of substantial past damages to the patentee. It is not a matter to be joked about.

          Nobody’s joking about anything. If one can’t amend one’s claims to avoid the prior art and still read on a competitor’s product, that’s surely not a flaw in the IPR system. It’s a feature.

          The flaw is either in the patent application or in the underlying innovation.

            1. 8.2.1.1.1.1

              Ned,

              Let’s also throw in there the Executive Branch performing a taking of at least one stick in the bundle of property rights – and doing so with no judicial review (regardless of any final adjudication, one of the sticks in the bundle is the presumption of validity, and AT THE MOMENT some Article I judge decides to move forward with IPR, that stick is taken).

              As I am sure you will agree, that stick most definitely has value.

              1. 8.2.1.1.1.1.1

                Haven’t you filed your constitutional challenge to the IPR provisions of AIA yet?

    3. 8.3

      You may call it “rigging” IPRs against patent holders. But in truth, those claims likely should not have issued in the first place, and IPRs are simply returning subject matter to the public that should have been theirs all along.

      1. 8.3.1

        Apotu, Should not have issued? Really?

        We are not talking here about 101, functional claims, or claims that are clearly anticipated by prior art given any reasonable construction. We are not talking about here claims with 112 problems.

        What an IPR does is strip patents of presumed validity in two ways. We first lower the standard of proof, and then we deliberately construe the claims to read on the prior art. The latter is justifiable in ex parte prosecution to force clarifying amendments, but not sir with respect to issued patents when there is no right to amend.

        1. 8.3.1.1

          You might also remind Apotu about the concept of due process when property rights are taken in violation of the constitution (see above).

    4. 8.4

      Modern day baseball has replay and review in certain cases. Even ol time ball allowed appeals to be made to another umpire who may have a clearer view, say of a swing or no swing. Sometimes another umpire can better judge if a batter stepped out of his defined box when hitting the ball even if the batter tried to blur the lines of his box.

        1. 8.4.1.1

          ’bout them balls and strikes:
          Ump 1: I call ‘em like I see ‘em.
          Ump 2: I call ‘em like they are.
          Ump 3: They ain’t nuthin’ till I call ‘em.

          #3 attributed to an Hall Of Fame umpire Bill Klem, along with this one. The “job is to umpire for the ball and not the player” but…

          There are no actual lines boxing the strike zone which varies vertically and dynamically with each batter. The current zone top limit is an imaginary horizontal extended line midway between the batter’s shoulders and the top of his pants, and a line at the top of his knees (maybe not horizontal) we can’t imagine that place until we see the batter and his stance. Catcher framing (cheating?), balls curving somewhere-within, without, into, out of , below or above that defined but not seen zone- ball/strike determination is more than knowing about a virtual prism.

  4. 7

    link to en.wikipedia.org

    Baseball has been taken to task for turning a blind eye to its drug problems. It benefited from these drugs in the ever-increasingly competitive fight for airtime and media attention. MLB and its Players Association finally announced tougher measures, but many felt that they did not go far enough.

    Probably some parallels there.

  5. 5

    There are hitter friendlier fields (mostly East) and pitcher friendlier fields (mostly West) and then there is Coors Field in Colorado the hitter friendliest place of all.

  6. 3

    Jason: A cost of getting rid of cable tv is that one can only listen to postseason baseball games that are currently being played. Which is actually my preferred way to follow the game.

    Mine, too. Lucky Giants fans get to listen to Jon Miller, one of the greatest voices in the history of the game.

    1. 3.1

      Lucky Giants fans get to listen to Jon Miller, one of the greatest voices in the history of the game.

      Agreed. I listened to him doing the Orioles’ broadcasts for years.

    1. 2.1

      If you had to analogue it to baseball, yeah, I’d agree that the patent holder is actually the pitcher. The fact remains that in most multiparty patent litigations, the vast majority of the defendants settle and take a license long before the case gets to trial simply to avoid the two or more million in fees and other litigation costs that can almost never be recovered (even under the new Octane Fitness decision). By the time you get to trial, the patent holder has more than recouped its costs, many times over, and the trial may only be against one or two holdouts. That’s why when you look at some of the big NPEs out there, many of them have miserable success rates at trial but have made massive sums of money and really don’t lose must from a trial loss.

    2. 2.2

      I would agree with this assessment only in one class of cases: bottom-feeder troll cases that settle for discounted cost of defense value.

      If the patentee is going for fair value, high stakes damages on legitimate patents, it is most definitely the batter. And, today, that batter better have huge money reserves for a 5-7 year litigation campaign.

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