by Dennis Crouch
By the time the Federal Circuit opines about a particular patent, that patent is usually at least 8 years old (median). I was wondering about the shortest time from patent-issuance to Federal Circuit written decision. The fastest I could find (for the past decade) is M-I LLC v. FPUSA, LLC, 626 F. App’x 995 (Fed. Cir. September 24, 2015) (non-precedential).
M-I’s US9004288 issued Apr. 14, 2015 and directed to a system for recovering drilling fluid by using an improved “shaker.” A month later, May 15, 2015, M-I sued FPUSA for patent infringement in W.D.Tex and requested a preliminary injunction. The district court reviewed the equitable factors and granted the preliminary injunction on June 24, 2015. As was its right, FPUSA immediately appealed — filing its notice of appeal five days later along with a motion to expedite. The Federal Circuit granted that motion. Appellate was complete on September 8, and the court heard oral arguments on September 16. Eight days later, the court released Judge Hughes 7-page non-precedential opinion that affirmed-in-part. In particular, the court agreed that the preliminary injunction was proper, but concluded that the district court should have more carefully prescribed the scope. “[T]he preliminary injunction is overbroad … As we have previously held, broad injunctions that merely instruct the enjoined party not to infringe are improper because such an order frustrates the remedy of contempt.” Id.
Total time from patent issuance to written decision: 163 days.
Note – This data comes from my own compilation of patent data combined with some of Prof. Rantanen’s work available here: Jason Rantanen, “Federal Circuit Docket Dataset”, https://doi.org/10.7910/DVN/EKSYHL, Harvard Dataverse, V3 (2021). I’ll note that these are preliminary statistics and so it is possible that there is another case with a faster opinion.
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One of the longest-delays from the past several years is found in Dome Patent LP v. Lee, 799 F.3d 1372 (Fed. Cir. 2015). The patent at issue there was granted in 1981, almost 34 years before the appellate decision. US4306042 (Oxygen permeable contact lens material). Dome had filed the infringement lawsuit in 1997 — not much before the time of patent expiration. The defendants sent the patent through reexamination. After losing at the PTO on obviousness, the patentee filed a civil action to confirm patentability (this is no longer allowed for reexams). That whole process took more than a decade to resolve. Finally in 2015, the Federal Circuit affirmed — holding the claims invalid as obvious.
This should be normal. We cannot fund innovation with this system that requires 15 years an a series of appeals to adjudicate every dispute.
In my view, what many of the judges on the CAFC do is write opinions and orders to reduce the patent right and do not care about building a workable jurisprudence.
The game is to make all the laws regarding patents like Alice where the judge just feels what the answer should be and there is enough leeway in the caselaw to rule as they please. And you get layers of this at the PTO, DJ, and CAFC.
It all goes to the poor quality of character of the people that have been appointed as judges of the CAFC.
Dennis, there is a more directly important time period number it would be desirable to have a related study report on. Namely, the 35 USC 321 (c) “Post-grant review” (PGR) filing deadline: “A petition for a post-grant review may only be filed not later than the date that is 9 months after the date of the grant of the patent or of the issuance of a reissue patent (as the case may be).”
Prior to its AIA enactment I did a brief study of how often patents were sued on so soon after grant, and found that most were filed far longer than that after grant. Thus, correctly predicted there would be little use of PGRs in spite of their far greater scope of unpatentability challenges than IPRs or reexaminations [limited to only patents and publications]. However, others have argued that the lack of use of PGRs is due more to their equally greater [if not nearly total] scope of subsequent validity challenges estoppel for losing PGR petitioners.
Could the same data sets you used here provide a definitive answer as to how many U.S. patents are sued on within 9 months of issue?
P.S. The large number of suits for infringed patents being brought long after the patent issues, even up to six years after the patent expires, are enabled by the absence of a true statute of limitations or repose, like most other tort suits, merely a time limit on back damages recoveries, and no remaining effective laches.
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It would be interesting to have an infringement damages recoveries expert chip in here re this study report, as part of the time delay of infringement damages litigation recovery is normally compensated for by the required interest payments added on to the judgment amount.
When you say “large number,” what is the context of “large.”
I ask because as I have pointed out previously, actual lawsuit count is not “large” (especially given the hyperbolic “0h N0es Tr011s” rhetoric).
Much larger than patents issued for less than six months, the subject of 2.
… and in relation to, oh, say, ALL patents issued….?
The only subject here is patent suits, by far the most financial and business important aspect of patents than the more than 98% of patents never enforced. Some numbers you can digest or argue with are:
There were 2,279 new patent suits filed in 2020. Reportedly US courts awarded $4.67 billion total in patent damages during 2020. [Not clear if before or after appeals.] The reported average cost each for patent litigation is between $2.3 million and $4 million. That works out to about $11,597,000,000. per year for both costs. [The fact that most patent suits settle before trial does not mean they were cheap.]
But that is not counting the business costs and losses from granted patent injunctions, which can be large, such as in the Polaroid v. Kodak instant camera patent litigation shutting down Kodaks entire instant camera business.
“more than 98% of patents never enforced.”
You do know that enforcement comes in flavors that never see a hint of litigation, right?
The point here Paul, is that there is an over abundance of “litigation” mindset bias.
It’s worth remembering that legitimate litigation is driven by uncertainty, and Alice-type tests are a prime contributor to that uncertainty.
Put differently, each time a question needs to go to trial, it’s a fundamental failure of our judicial system.
OC,
I can see your point, even as I am not so certain that I would agree.
The path of redress should not be viewed as “failure.” It is an important legal avenue that exists because there will be SOME instances in which both sides of an issue see an avenue to their side prevailing.
Sure, this can be “gamed,” and used as a legal t001, but such is as it ever was (and litigation attorneys may have come to depend on such).
But the ‘spin’ that I would put to your comment is to reinforce my point that there is a an over abundance of “litigation” mindset bias in even taking a view that “litigation” is somehow a necessary indicator to patent enforcement (even as a proxy for worth of having patents). These (litigation is a driver) are the types of pernicious narratives that should be squelched.
In some cases yes, a legal uncertainty leads to the litigation. But there are clearly too many patent suits on patent claims that an independent legal expert would have been able to clearly say is in serious Alice type [or other] trouble, but hoping to get a typical litigation-cost-financial-settlement-payout, since they are so common.
“… they are so common”
This is exactly the type of claptrap MISinformation and Efficient Infringer “0h N0es Tr011s” propaganda that drives the errant Ends Justifies the Means legislation from the bench that weakens US innovation protection.
For shame.
Does anyone who has had any involvement in patent litigation really think that patent owner plaintiffs, in the more than 90% of patent suits that settle before trial, regularly hand out free licenses rather than getting paid at least part of the large amount it would cost defendants to continue defending, as Anon asserts?
Mr. Morgan – that is beyond a silly strawman that you seek to twist my position into.
For double shame.
A copyeditor would have stricken “at least” from the first sentence.
It would have changed the meaning mathematically.
“By the time the Federal Circuit opines about a particular patent, that patent is usually at least 8 years old (median).”
Isn’t the first sentence mathematically incorrect? If the “median” is 8 years, don’t half lie below that, and half above?
Maybe: “By the time the Federal Circuit opines about a particular patent, that patent is, on average, 8 years old.”
Or at least strike the “at least”. 😉
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