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.