Willful Patent Infringement: An Empirical Look

Professor Kimberly Moore is one of the leading empirical researchers in the area of patent law.  In her latest article, Professor Moore looks into the issue of willful patent infringement.  Some of her findings:

  • Willfulness is alleged all of the time (more correctly in +90% of cases);
  • Willfulness is never decided on summary judgment;
  • About one third of willfulness issues are bifurcated at trial;
  • At trial, willfulness is found about half of the time;
  • The CAFC affirmed over 90% of jury verdicts on willfulness;
  • In bench trials, a noninfringement/invalidity opinion was critical in avoiding a willfulness finding;
  • In jury trials, an opinion did not create a significant impact.

The study analyzed all patent cases infringement cases that terminated during litigation from 1999-2000.

Kimberly A. Moore, Empirical Statistics on Willful Patent Infringement, 14 Fed. Cir. Bar J. 227 (2004).