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Lex Machina Patent LitigationYear in Review 2016
by Brian C. Howard J.D./M.AAssociate General Counsel & Legal Data Scientist
and Jason Maples J.D./LL.M.Legal Data Expert
Published March 2017
Lex Machina – Patent Litigation Year in Review 2016 i
Executive Summary
Lex Machina’s fourth annual Patent Litigation Year in Review examines the key trends in the legal landscape of 2016 and places them in the context of recent years, showcasing the value of Legal Analytics® in informing business and strategic decisions about litigation.
This report provides insight into the quantitative aspects of patent litigation. Practitioners can find data to give them an edge at all stages of a case: from top parties and firms for business development or outside counsel selection, to jurisdictional analysis, the timing of key case events, the likelihood of winning invalidity or infringement findings, all the way to data on damages. Regardless of which side of a complaint (or retainer agreement) one finds oneself, understanding the data behind the business of patent litigation has become indispensable to assessing strategic opportunities and risk, and to budgeting accordingly.
This report examines the key axes of legal data and their interactions, drawing upon Lex Machina’s platform that combines data from PACER, the Patent Trial and Appeal Board (PTAB), the U.S. International Trade Commission (ITC), the U.S. Food and Drug Administration (FDA) Orange Book on Abbreviated New Drug Applications (ANDAs), and more.
Key trends and highlights from 2016 include:
Filing Trends:
• In 2016, 4,537 patent cases were filed - a 22% decline from 2015.
• Cases were filed relatively evenly the last three quarters of 2016.
• The Eastern District of Texas continues to lead the nation by number of new cases filed in 2016 - 1,662 cases were filed there in 2016, representing a 34% decrease over the district’s 2015 total (2,541 cases).
• The Eastern District of Texas saw 36.7% of the cases filed in 2016, and that percentage increased each quarter.
• New case filings in the District of Delaware, historically the second top district, continued to decline further in 2016 by 16.5% over 2015 (itself a 42.4% decrease over 2014).
• High volume plaintiffs file the majority of cases in the Eastern District of Texas.
Lex Machina’s 2016 Patent Litigation Year in Review surveys and summarizes the key trends that have emerged over the last year.
Based on the same data driving Lex Machina’s platform, this report exam-ines filing trends, case timing, motions, judges, top law firms, patent trends, parties, and damages to showcase the power of Legal Analytics .
Lex Machina – Patent Litigation Year in Review 2016 63ii
The Eastern District of Texas
• While plaintifffs do not win on the merits disporportionately-often in the district, a low summary judgment grant rate, combined with local procedures that restricted parties from filing for summary judgment in the first instance, has produced an unusually high settlement rate.
Case Timing
• Central and Northern Districts of California saw faster median times to claim construction (about a year) than any of the Eastern District of Texas, the District of Delaware, or the national average (all a year and a half).
Motion Metrics
• Of motions to stay pending PTAB decided in 2015 and 2016, the Eastern District of Texas, the District of Delaware and the Northern District of California had similar grant rates of 55-60%, while the Central District of California districts denied motions to stay pending PTAB at a higher rate.
Design Patent and ANDA Litigation
• Although comprising a smaller fraction of the litigated patents, design patent litigation is far more consistent than utility patent litigation.
• Design patent litigation remains highly concentrated in the Central District of California, and that district saw its total increase 4.8% over 2015.
• ANDA cases rose sharply in 2014 into 2015, but have declined in 2016 to a level more commensurate with 2010-2011.
• ANDA litigation is heavily concentrated in the Districts of New Jersey and Delaware, each of which has had significantly more cases filed than the all districts below the top ten.
Judges
• Judge Gilstrap of E.D.Tex. has an astounding 1,119 cases assigned to him in 2016 - the fourth year in a row that he has had the most patent cases of any judge in the country. Judge Gilstrap’s large caseload comes in part from him being assigned a large percentage of cases filed in the court’s Marshall Division.
• Judge Gilstrap’s large number of cases also put him at the top of the charts for most cases with findings and summary judgments.
• However, Judge Andrews of the District of Delaware is second both in most findings and most summary judgments.
Parties
• The top plaintiffs of 2016 include Shipping and Transit, Uniloc, and Sportbain Holdings.
• Shipping and Transit previously did business under the name ArrivalStar. This entity has featured as top plaintiff in previous years (as the top plaintiff of 2013 with 137 cases that year, and ranked the fourth in 2015 with 65 cases). In total, the two entities have brought over 500 patent lawsuits to date, but have not prevailed on the merits in any case so far.
• The top ten plaintiffs are all patent monetization entities (PMEs).
Lex Machina – Patent Litigation Year in Review 2016 iii
• Samsung remains the top defendant with 37 patent cases filed against it in 2016. Samsung topped the chart last year in 2015 with 64 cases as well).
• Apple, the leading defendant in 2013 and 2014, defended fewer cases in 2016 (26 cases) than LG Electronics (28 cases).
• The majority of both plaintiffs and defendants have the Eastern District of Texas as their top court. The only other court that appears as the top court for the listed defendants is the District of Delaware.
Law Firms
• Ferraiuoli handled the most plaintiff-side cases in 2016 (206 cases), primarily in the Eastern District of Texas, but is headquartered in San Juan, Puerto Rico.
• The top national firm of 2016 by plaintiff representation was Russ, August & Kabat with 110 cases (up from fourth in last year’s ranking), followed by McCarter English with 74 cases (last report’s top firm with 121 cases in 2015).
• The top national firm of 2016 by defendant representationis Fish & Richardson with 160 cases – more than double the next leading firm (Winston & Strawn, 61 cases). Also among the top firms are Perkins Coie (59 cases), and Alston & Bird (51 cases).
• Among Texas firms, Gilliam & Smith leads with 260 cases in 2016.
• Among Delaware firms, Morris, Nichols, Arsht & Tunnell tops the list with 181 cases in 2016 (as it did last year with 251 cases in 2015).
Patents and Patent Findings
• Findings of infringement tend to come from either trial or from consent or default judgment, while findings of non-infringement or invalidity are more likely to have come from summary judgment.
• The median time for a preliminary injunction is 3.8 months, and for permanent injunction is 11.6 months.
Remedies and Case Resolutions
• The majority - 74.6% - of patent cases terminating between 2009 and 2016 settled. Of those that did not, the largest block (15.3% of terminated cases) reach a procedural outcome, such as transfer or consolidation. Wins by the claimant (6.1%) are more common than wins for the claim defendant (4.0%).
Damages
• Compensatory damages continue to be awarded in few cases, around 1.8 % of the terminated cases filed since the year 2000.
In sum, this report illustrates the impact that Legal Analytics can have on key aspects of the business and practice of patent law in generalized way. The full power of Legal Analytics is revealed, though, when users engage with the platform, tailoring their analysis to produce the tactical or strategic insights particular to their circumstance. When users have the ability to “twist the dials,” the results provide a competitive advantage in landing clients, winning cases, and closing deals by making data-driven decisions.
Lex Machina – Patent Litigation Year in Review 2016 63iv
Table of Contents
Lex Machina’s Data, Methodology, and Terminology vii
Overview
Figure 1: New cases filed, 2007-2016, by year 1Figure 2: New cases filed, 2016, by month 1Figure 3: New cases filed, 2007-2016, by month 2Figure 4: New cases filed, 2016 vs recent years, by month, cumulative 2Figure 5: Defendant-case pairs, 2008-2016, by month 3
U.S. District Courts
Top Districts
Figure 6: New cases in 2016, by district 4Figure 7: New cases pie, 2016, by district 4Figure 8: Net increase (left) and decrease (right) in new cases filed in 2016 5Figure 9: New cases, 2007-2016, by year 5Figure 10: New cases in D. Del. and E.D.Tex., by year and plaintiff volume class, cases filed 2011-
2016 6Figure 11: Percentage change by quarter in cases filed in 2016 by top district 7
A Quantitative Look at the Eastern District of Texas
Figure 12: Case resolutions, E.D.Tex. vs other districts 8Figure 13: Summary judgment grant rate in cases filed 2013-2015 9Figure 14: Cases filed 2013-2015 9Figure 15: Cases filed 2013-2015 with a summary judgment motion filed 9Figure 16: Percentage of cases where a summary judgment motion is filed 9
Timing and Motions in Top Districts and Nationally
Figure 17: For top districts, cases filed 2005-2015 and reaching a claim construction hearing in 2012-2016 10
Figure 18: For top districts, timing by cases filed 2005-2015 and reaching a claim construction hearing in 2012-2016 11
Figure 19: For top districts, cases filed 2005-2015 and reaching trial in 2012-2016 12Figure 20: For top districts, timing by cases filed 2005-2015 and reaching trial in 2012-2016 12Figure 21: For top districts, timing and success of motions to stay pending PTAB decided 2015-
2016 13
Design Patent Litigation
Figure 22: Asserted patents, by design (orange) or utility (blue), by quarter, 2007-2016 14Figure 23: Top districts, by new cases including one or more design patents, 2007-2016 (and
showing percentage change from 2015)vv 14
ANDA Litgation
Figure 24: New ANDA cases, by year, 2007-2016 15
Lex Machina – Patent Litigation Year in Review 2016 v
Figure 25: New ANDA cases, by month, 2013-2016 15Figure 26: Top districts, by new ANDA cases filed, 2009-2016 16Figure 27: Top districts, by new ANDA cases filed in 2016 (and percentage change from 2015) 16
Judges
Figure 28: Top Article III judges, by new cases filed in 2016 17Figure 29: Top magistrate judges, by new cases filed in 2016 17Figure 30: Top judges, by cases reaching decisions on patent infringement, validity, or enforce-
ability in 2016 18Figure 31: Top judges, by cases having summary judgment on patent infringement, validity, or
enforceability (showing judges having 3 or more) in 2016 18
Parties
Figure 32: Top plaintiffs, by new cases in 2016 19Figure 33: Top defendants, by new cases in 2016 20Figure 34: Top high volume plaintiffs by cases filed 2012-2016 (showing distribution of cases
by year, with higher concentrations shown in larger red and lower concentrations in thinner blue) 20
Party Profile: Shipping and Transit / Arrival Star
Law Firms
Figure 35: National law firms, by cases filed in 2016 representing plaintiffs 22Figure 36: National law firms, by cases filed in 2016 representing defendants 23Figure 37: Texas law firms, by cases filed in 2016 23Figure 38: Delaware law firms, by cases filed in 2016 23
Patents and Patent Findings
Figure 39: Most frequently asserted patents in 2016 24Figure 40: Patent judgment types by finding, for findings in 2016 25Figure 41: Patent findings by judgment types, for findings in 2016 26Figure 42: Patents invalidated, 2013-2016, under 35 U.S.C. § 101 for lack of patentable subject
matter, by quarter 27Figure 43: Patents invalidated, 2013-2016, by basis 27Figure 44: Top Districts by cases with patents invalidated under 35 U.S.C. § 101 for lack of pat-
entable subject matter (cases filed 2012-2016 with invalidity finding in 2016) 28
Remedy Timing and Case Resolutions
Figure 45: Case reaching injunction, in cases terminating 2012-2016 29Figure 46: Case resolutions, in cases terminating 2009-2016 30Figure 47: Case resolutions, in cases terminating in 2016 30
Lex Machina – Patent Litigation Year in Review 2016 63vi
Damages
Figure 48: Cases, 2000-2016, with damages 31Figure 49: Total damages awarded during 2016 in cases filed 2000-2016, by type 31Figure 50: Median damages, 2000-2016, by year and type 32Figure 51: Damages percentiles, 2000-2016, by type 32Figure 52: Damages by judgment type, awarded 2000-2016 33Figure 53: Median damages, 2000-2016, by year and type 33
PTAB
Figure 54: IPR and CBM petitions filed, 2012-2016, by month 34Figure 55: Trial Flow, PTAB IPR petitions, filed 2012 - 2016 and and terminated in 2016 34
ITC
Figure 56: ITC investigations filed, 2007-2015 35Figure 57: ITC dispositive outcomes, by current ALJ, investigations noticed and terminating
2007-2015 35
Using Boxplots to Understand Timing 36
Lex Machina Product Enhancements in 2016 37
Lex Machina – Patent Litigation Year in Review 2016 vii
Lex Machina’s Data, Methodology, and TerminologyThis report draws on data from Lex Machina’s proprietary intellectual property litigation database. Although some of our data is derived from litigation information publicly available from PACER (federal court system), EDIS (the ITC system), or the PTAB website, Lex Machina applies additional layers of intelligence to bring consistency to, and ensure the completeness of, the data. Beyond the automation, key areas of Lex Machina’s data are either human-reviewed or hand-coded by a dedicated team of attorneys to ensure accuracy. This report analyzes trends in patent litigation. To determine whether a case is a patent case, others may blindly trust the Cause-of-Action (CoA) and Nature- of-Suit (NoS) codes entered in PACER. But Lex Machina actively analyzes complaints to ensure that patent cases filed under mistaken CoA/NoS codes (or a CoA/NoS code corresponding to a different claim, e.g. contract in a combined patent/contract case) are not missed. This same system also allows Lex Machina to filter out the many spurious cases that have no claim of patent infringement despite bearing a patent CoA/NoS code (e.g. false marking cases). Moreover, due to inherent design limitations, PACER often shows inaccurate or corrupted information for older terminated cases. For example, when a lawyer leaves one firm for another, PACER may show closed cases that the lawyer worked on at the old firm as having been handled by the new firm. When combined with law firm splits, acquisitions, and mergers, these inaccuracies accumulate to render PACER data less reliable for older cases. Lex Machina, however, has a historic record going back to the first days of electronic filing on PACER (and other data going back even further). These snapshots, unique to Lex Machina, give us access to normalized contemporary data and enable us to provide more accurate data for older cases than someone using PACER today. Lex Machina’s data is focused on the lower courts (District Courts, PTAB, and ITC) and does not include appeals or modifications of judgments on appeal.
What is an ANDA case? The sale of new drugs in the United States is regulated by the Food and Drug Administration (FDA). Pharmaceutical companies launching new, branded drugs must file NDAs (New Drug Applications). The FDA also approves applications for new generic drugs, and makers may file abbreviated applications, either an ANDA or paper NDA (hybrid of a full NDA and an ANDA, also known as a “Section 505(b) (2)” application).
These abbreviated applications assert that the generic is a duplicate of a branded drug (ANDA) or differs from a branded drug but meets safety and efficacy standards based on published studies (paper NDA). Although ANDA and paper NDA cases differ in some important respects, this report considers them together as “ANDA cases” as they represent less than 3% of Hatch-Waxman litigation. The Hatch-Waxman Act put in place the expedited approval processes for generics and in doing so launched a new type of patent litigation — cases with accused infringing products that are not yet on the market or even approved by the FDA at the time the lawsuit is filed. These cases are often tried by a judge and the generic maker frequently stipulates to infringement. The remedies sought often include injunctions with specific date bounds. Lex Machina identifies as ANDA cases those patent infringement cases prompted by the filing of an ANDA or paper NDA by a prospective generic maker. This definition, however, does not include cases involving investigational new drugs, over-the-counter drugs or any process or product not requiring FDA approval, therapeutic biologic applications (biosimilars), or generics authorized by the branded drug maker.
Lex Machina – Patent Litigation Year in Review 20161
Overview
Figure 1: New cases filed, 2007-2016, by year
Note: All charts reflect patent litigation in the U.S. District Courts except where otherwise stated.
2007 2008 2009 2010 2011 2012 2013 2014 2015 20160
1,000
2,000
3,000
4,000
5,000
6,000
Cas
es fi
led
4,533
3,578
6,128
5,090
5,821
2,5552,580
5,470
2,7812,776
Figure 2: New cases filed, 2016, by month
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov DecMonth
0
50
100
150
200
250
300
350
400
450
Cas
es fi
led
376
390390
279
400
354
294
412414
458 456
310
Lex Machina – Patent Litigation Year in Review 2016 2
In 2016, 4,537 patent cases were filed - a 22% decline from 2015.
Cases were filed relatively evenly the last three quarters of 2016. The first quarter may be somewhat lower due to a spike in November and December 2015 corresponding to a rule change that eliminates Form 18, the form often used to plead direct infringement claims in patent cases.
Figure 3: New cases filed, 2007-2016, by month
2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017Month
0
100
200
300
400
500
600
700
800
Cas
es fi
led
847
688
469
509518
445 442422
415 408
444448
396
466
391
305307376
436
308 283
520501
406 390390
522
321
281
495
279
490
171
400
196
568
400
344 354
612602
270
233
484
204
170
426406
224
405
294
412
508
242216
214
414
233
211
386
358
458
212
346
171
252
456
236
549
173
343
283
238
215
222 206206
255
222
310339
226
555
202
510
658
391
228
200218
255
336276
578
334
310
247197
539
205
368
240 252
529
200238
Figure 4: New cases filed, 2016 vs recent years, by month, cumulative
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov DecMonth
0
1,000
2,000
3,000
4,000
5,000
6,000
Cas
es fi
led
658 490
415
469
456
422414
520
501
391
310
336
495
426
281
376
408400
412
279
334
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602
847
555
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339
396
310
458
549
294
354
442 343
346
518
390
522
510
390
Year2013201420152016
Lex Machina – Patent Litigation Year in Review 20163
Figure 5: Defendant-case pairs, 2008-2016, by month
2008 2009 2010 2011 2012 2013 2014 2015 2016Month / Year
0
500
1000
1500
2000
2500
3000
Def
enda
nt-c
ase
pairs
2,955
1,0661,056
892 876
1,335
834
1,406
736
1,334
713685
654
896
1,089
864876
1,220
905
527
878
1,200
799
929 908
764
775888
907869
744
743
974
810852
554431
624736786
648
959
664922
645633602
672
831636
830933 979
769680629
904971
498
1,064
594
809680
748
710
757 883966
1,044
801674720
560 600
867
552
1,071
626652540
728
1,052
726 751
9/16/2011 AIA ef fective
The America Invents Act (AIA), which became effective in September 2011, limited the number of defendants a plaintiff could sue in a single case. These anti-joinder provisions make case filing rates from before its enactment in 2011 incomparable with those from afterwards. For example, the AIA’s restriction on suing multiple defendants in the same case means that a plaintiff would have to file more patent cases in 2016 than it would have in 2010 to sue the same number of defendants. In order to understand the increase in litigation and what happens afterwards, it helps to count litigation in a way that is not affected by the AIA’s change of rules, such as counting each defendant in a case separately (counting defendant-case pairs).
Measured by defendant-case pairs, the AIA did not dramatically reduce patent case filings, as the quarters from late 2011 to mid 2013 follow a trajectory consistent with those from 2009 to early 2011. This data also shows that litigation dropped in the last half of 2014 to a level more commensurate with 2009 and 2010 than the raw case filings alone would suggest.
The dramatic spike seen in late 2011 corresponds to the large number of cases filed in a small number of days against numerous defendants; this spike coincided with the effective date of the AIA’s joinder provisions.
Lex Machina – Patent Litigation Year in Review 2016 4
U.S. District Courts
Figure 6: New cases in 2016, by district
E.D.Tex. D.Del. C.D.Cal. D.N.J. N.D.Cal. N.D.Ill. S.D.N.Y. S.D.Fla. S.D.Cal. D.Mass.
0
500
1000
1500
Cas
es fi
led
in 2
016
-0.4
-0.2
0.0
0.2
0.4
0.6
% c
hang
e fro
m 2
015
1,662
455
188187 247107 133
290
91 61
-34.6%
-16.5%
-31.3%
-17.9%
-30.5%
-14.1%
51.5%
13.8%
-3.0%
0.8%
Figure 7: New cases pie, 2016, by district
188 cases4.1%
N.D.Cal.
290 cases6.4%
C.D.Cal.
455 cases10.0%D.Del.
247 cases5.4%
N.D.Ill.
1,662 cases36.7%
E.D.Tex.
1,691 cases37.3%
Other districts
Top Districts
Lex Machina – Patent Litigation Year in Review 20165
Patent litigation is very unevenly distributed between the districts.
The Eastern District of Texas continues to lead the nation by number of new cases filed in 2016 - 1,662 cases were filed there in 2016, representing a 34% decrease over the district’s 2015 total (2,541 cases).
The Eastern District of Texas saw 36.7% of the cases filed in 2016, and that percentage increased each quarter. For comparison, Delaware, the next most popular district, saw less 10%. In 2016, the number of cases filed in the Eastern District of Texas, plus those filed in the District of Delaware, is approximately equal to the number of cases filed in all other districts combined.
New case filings in the District of Delaware, historically the second top district, continued to decline further in 2016 by 16.5% over 2015 (itself a 42.4% decrease over 2014).
Figure 8: Net increase (left) and decrease (right) in new cases filed in 2016
0 20 40 60 80 100Delta (2016)
N.D.Ill.
W.D.N.C.
E.D.Wis.
E.D.Mich.
S.D.Cal.
84 cases51.5%
20 cases142.9%
13 cases81.3%
12 cases24.5%
11 cases13.8%
-1000 -800 -600 -400 -200 0Delta (2016)
E.D.Tex.
D.Del.
D.N.J.
N.D.Tex.
S.D.N.Y.
-879 cases-34.6%
-90 cases-16.5%
-85 cases-31.3%
-65 cases-56.5%
-47 cases-30.5%
Figure 9: New cases, 2007-2016, by year
2007 2008 2009 2010 2011 2012 2013 2014 2015 20160
500
1000
1500
2000
2500
Cas
es fi
led
D.Del.
E.D.Tex.
C.D.Cal.N.D.Cal.
Label (copy)C.D.Cal.D.Del.E.D.Tex.N.D.Cal.N.D.Ill.Other districts
Lex Machina – Patent Litigation Year in Review 2016 6
Figure 10: New cases in D. Del. and E.D.Tex., by year and plaintiff volume class, cases filed 2011-2016
2011 Q1 2011 Q3 2012 Q1 2012 Q3 2013 Q1 2013 Q3 2014 Q1 2014 Q3 2015 Q1 2015 Q3 2016 Q1 2016 Q3 2017 Q1Quarter / Year
E.D.Tex.
D.Del.
All otherdistricts
0
200
400
600
Cas
es fi
led
0
200
400
600
Cas
es fi
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0
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Cas
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Volume classHigh-Volume PlaintiffLow-Volume Plaintiff
High volume plaintiffs file the majority of cases in the Eastern District of Texas.
Two patterns emerge: first, high volume plaintiff litigation is more more variable (spikey) than low volume litigation, which is flatter and therefore more consistent and predictable over time. Second, high volume litigation is variable in the preference for districts - preferring Delaware around 2012-2013 and later the Eastern District of Texas from 2014 onwards.
Lex Machina defines a high volume plaintiff as a plaintiff who has filed at least 10 cases within a 365 day span.
Subscribers can now explore trends related this phenomenon - just filter down to (or exclude) high volume plaintiffs!
Lex Machina – Patent Litigation Year in Review 20167
Figure 11: Percentage change by quarter in cases filed in 2016 by top district2014 2015 2016
Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4
E.D.Tex.
D.Del.
All otherdistricts
0%
20%
40%
60%%
of c
ases
file
d
0%
20%
40%
60%
% o
f cas
es fi
led
0%
20%
40%
60%
% o
f cas
es fi
led
370 cases29%
535 cases36%
206 cases18%
316 cases28%
550 cases37%
839 cases50%
434 cases39%
718 cases46%
293 cases30%
474 cases37%
428 cases38%
467 cases40%
264 cases20% 262 cases
18%
240 cases21% 180 cases
16% 152 cases10% 100 cases
6%
138 cases12% 155 cases
10%134 cases
10%107 cases
10%
147 cases13%67 cases
7%
660 cases51% 697 cases
47%
723 cases62% 637 cases
56% 770 cases52%
727 cases44%
541 cases49% 697 cases
44%
603 cases63%
682 cases53%
589 cases52% 542 cases
47%
Lex Machina – Patent Litigation Year in Review 2016 8
A Quantitative Look at the Eastern District of Texas
In the last two years, approximately 35-40 percent of patent cases filed in the United States are filed in the Eastern District of Texas. See Fig. 11, left.
The concentration of litigation in the Eastern District of Texas is driven by few parties filing large numbers of cases - the high volume plaintiffs. See Fig. 10.
2011 Q1 2011 Q3 2012 Q1 2012 Q3 2013 Q1 2013 Q3 2014 Q1 2014 Q3 2015 Q1 2015 Q3 2016 Q1 2016 Q3 2017 Q1Quarter / Year
E.D.Tex.
D.Del.
All otherdistricts
0
200
400
600
Cas
es fi
led
0
200
400
600
Cas
es fi
led
0
200
400
600
Cas
es fi
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Volume classHigh-Volume PlaintiffLow-Volume Plaintiff
The district does not disproportionately favor plaintiffs on the merits - the ratio of claimant win to claim defendant win is similar to other districts.
But far more cases settle in E.D.Tex. relative to elsewhere (89% vs 70% in other districts in patent cases terminated 2015-2016).
Claimant Win ClaimDefendant Win
LikelySettlement
Procedural
E.D.Tex.
Otherdistricts
0K
2K
4K
6K
Cas
es
0K
2K
4K
6K
Cas
es
3,623 cases89.0%
337 cases8.3%60 cases
1.5%49 cases
1.2%5,168 cases
70.3%
1,324 cases18.0%463 cases
6.3%397 cases
5.4%
Many of the top plaintiffs prefer E.D.Tex. and most top defendants are sued in E.D.Tex. See Figs. 32-33.
Rank Name Top court % cases in topcourt
0 20 40 60 80 100 120Total cases
1 Shipping and Transit, LLC S.D.Fla. 58.9%2 Uniloc Luxembourg S.A. E.D.Tex. 100.0%
Uniloc USA, Inc. E.D.Tex. 100.0%4 Sportbrain Holdings LLC N.D.Ill. 100.0%5 Blackbird Tech LLC D.Del. 100.0%
Hawk Technology Systems, LLC E.D.Tex. 14.6%7 Guyzar, LLC E.D.Tex. 100.0%
Symbology Innovations, LLC E.D.Tex. 48.6%9 T-Rex Property AB N.D.Ill. 42.4%10 Codec Technologies LLC E.D.Tex. 100.0%
Global Equity Management (SA) Pty. Ltd. E.D.Tex. 100.0%12 Pherah LLC E.D.Tex. 100.0%13 Digital Audio Encoding Systems, LLC D.Del. 100.0%
Solocron Education, LLC E.D.Tex. 100.0%15 Whirlpool Corporation E.D.Tex. 100.0%
107 cases87 cases87 cases
75 cases48 cases48 cases
35 cases35 cases
33 cases32 cases32 cases
30 cases29 cases29 cases28 cases
Rank Name Top court % cases in t..
0 5 10 15 20 25 30 35 40 45Total cases
1 Samsung Electronics America, Inc. E.D.Tex. 45.9%2 Samsung Electronics Co., Ltd. E.D.Tex. 45.2%3 LG Electronics, Inc. E.D.Tex. 53.6%4 Apple Inc. E.D.Tex. 38.5%5 Amazon Web Services, Inc. E.D.Tex. 91.3%6 ASUS Computer International E.D.Tex. 40.9%7 Huawei Device USA Inc. E.D.Tex. 66.7%
Huawei Technologies Co., Ltd. E.D.Tex. 61.9%Vadata, Inc. E.D.Tex. 100.0%
10 Actavis Inc. D.Del. 50.0%Amazon.com, Inc. D.Del. 20.0%AT&T Mobility LLC E.D.Tex. 60.0%
13 Apotex Inc. D.Del. 78.9%HTC America, Inc. E.D.Tex. 52.6%Huawei Technologies USA, Inc. E.D.Tex. 68.4%Microsoft Corporation E.D.Tex. 31.6%Mylan Pharmaceuticals, Inc. D.Del. 36.8%Teva Pharmaceuticals USA, Inc. D.Del. 57.9%
37 cases31 cases
28 cases26 cases
23 cases22 cases
21 cases21 cases21 cases
20 cases20 cases20 cases
19 cases19 cases19 cases19 cases19 cases19 cases
Figure 12: Case resolutions, E.D.Tex. vs other districts
Lex Machina – Patent Litigation Year in Review 20169
What explains this high settlement rate?
Cases filed 2013-2015† in the Eastern District of Texas are less likely to see a granted summary judgment motion. The corresponding risk and cost of facing trial may drive settlement.
† This time frame was chosen because cases typically take about 1-3 years to reach summary judgment.
Not only are summary judgment motions less likely to be granted in E.D.Tex., but summary judgment motions are less likely to be filed in the first place.
Several judges in the Eastern District of Texas (including Judge Gilstrap - who alone is assigned an astonishing percentage of patent cases - see Fig. 28) have until recently required parties to file a 5 page letter brief seeking permission before even filing for summary judgment.* In cases where this permission is not granted, no summary judgment motion is filed.
Although these procedures have been justified as judicial efficiency, the effect is to make the chances of a successful summary judgment even lower, and to obscure by how much (as motions not filed do not count as denied).
No rule requires disclosure of settlement terms, therefore no reliable, unbiased data can be compiled on the economic consequences of this elevated settlement rate.
E.D.Tex. Other districts combined
Granted Denied Partial Granted Denied Partial0%
50%
100%
% o
f ord
ers
on S
J m
otio
ns
121
orde
rs72
%
36 o
rder
s21
%
12 o
rder
s7%
305
orde
rs37
%
354
orde
rs43
%
157
orde
rs19
%
Figure 13: Summary judgment grant rate in cases filed 2013-2015
Figure 14: Cases filed 2013-2015
District
E.D.Tex. Other ..0K
2K
4K
6K
8K
10K
12K
Cas
es fi
led
2013
-201
5
11,576
5,464
Figure 15: Cases filed 2013-2015 with a summary judgment motion filed
District
E.D.Tex. Other ..0
200
400
600
800
Cas
es fi
led
2013
-201
5 wi
th S
J m
otio
n 798
150
District
E.D.Tex. Other ..0.00
0.02
0.04
0.06
% o
f cas
es w
ith S
J m
otio
n
2.7%
6.9%
Figure 16: Percentage of cases where a summary judgment motion is filed
* See https://www.law360.com/articles/820536/gilstrap-eases-filing-of-patent-summary-judgment-motions
Lex Machina – Patent Litigation Year in Review 2016 10
Timing and Motions in Top Districts and Nationally
Lex Machina’s timing analytics can help companies and counsel alike by providing data with which to make key decisions about strategy and budgeting.
For example, litigants in both Central and Northern Districts of California can budget less time and money on claim construction, as those districts saw faster median times to claim construction (about a year) than any of the Eastern District of Texas, the District of Delaware, or the national average (all a year and a half).
However, when it comes to trials, Delaware and Eastern Texas offer less variability - 75% of trials in both districts occur several months before the same can be said of either California districts. Of the districts, Central California shows the most variability, more so than the national average, making it less predictable and more difficult to budget for.
Figure 17: For top districts, cases filed 2005-2015 and reaching a claim construction hearing in 2012-2016
District
National E.D.Tex. D.Del. C.D.Cal. N.D.Cal.0
500
1000
1500
2000
2500
Cas
es re
achi
ng cl
aim
con
stru
ctio
n
2,387
165 215
420540
Lex Machina – Patent Litigation Year in Review 201611
Figure 18: For top districts, timing by cases filed 2005-2015 and reaching a claim construction hearing in 2012-2016
District
National E.D.Tex. D.Del. C.D.Cal. N.D.Cal.0.0
0.5
1.0
1.5
2.0
2.5
3.0
3.5
4.0
4.5
Tim
e to
cla
im c
onst
ruct
ion
hear
ing
/ yea
rs
1.0
1.6
2.3
1.0
1.3
1.7
1.2
1.5
2.0
0.81.0
1.3
0.9
1.2
1.6
Lex Machina – Patent Litigation Year in Review 2016 12
Figure 19: For top districts, cases filed 2005-2015 and reaching trial in 2012-2016
District
National E.D.Tex. D.Del. C.D.Cal. N.D.Cal.0
100
200
300
400
500
600
Cas
es re
achi
ng tr
ial
605
13093
2744
Figure 20: For top districts, timing by cases filed 2005-2015 and reaching trial in 2012-2016District
National E.D.Tex. D.Del. C.D.Cal. N.D.Cal.0
1
2
3
4
5
6
Tim
e to
tria
l
1.8
2.4
3.3
1.7
2.1
2.8
1.92.1
2.6
1.4
2.1
3.5
1.9
2.3
2.8
Lex Machina – Patent Litigation Year in Review 201613
Figure 21: For top districts, timing and success of motions to stay pending PTAB decided 2015-2016
E.D.Tex. D.Del. C.D.Cal. N.D.Cal. Other districts combined
Denied Granted Partial Denied Granted Partial Denied Granted Partial Denied Granted Denied Granted Partial
0
20
40
60
80
100
Ord
ers
on m
otio
ns
0
20
40
60
80
100
120
140
160
Tim
e to
dec
isio
n fro
m o
peni
ng m
otio
n
15 orders41%
21 orders57%
1 orders3%
20 orders40%
28 orders56%
2 orders4%
30 orders81%
6 orders16% 1 orders
3%
19 orders40%
29 orders60%
35 orders26%
92 orders69%
7 orders5%
83 days
56 days44 days
150 days
51 days
38 days30 days
37 days32 days
82 days
51 days 48 days38 days 35 days
Lex Machina’s platform allows users to track and analyze other types of motions, including motions to dismiss, motions to stay, and summary judgment motions. When considering the expense of filing a motion to stay pending PTAB, companies and litigators should know the likelihood of winning the motion - which turns out to differ depending on the district.
Of motions to stay pending PTAB decided in 2015 and 2016, the Eastern District of Texas, the District of Delaware and the Northern District of California had similar grant rates of 55-60%, while the Central District of California districts denied motions to stay pending PTAB at a higher rate.
Budgeting can also be affected by timing - for example, the Northern District of California is slower to decide than Central District of California.
Lex Machina – Patent Litigation Year in Review 2016 14
Design Patent Litigation
Figure 22: Asserted patents, by design (orange) or utility (blue), by quarter, 2007-2016
2007 Q3 2008 Q3 2009 Q3 2010 Q3 2011 Q3 2012 Q3 2013 Q3 2014 Q3 2015 Q3 2016 Q3Quarter/ Year
0
200
400
600
800
1000
1200
1400
1600
# of
pat
ents
ass
erte
d
876
1,301
949
1,2831,3221,322
1,644
1,271 1,266
1,3461,346 1,356
1,6111,606
1,223
1,379 1,387
1,2131,209
1,396
1,205
1,415
1,057
1,5401,536
1,433
1,531
1,437
1,1611,161
1,1531,083
1,146
1,459 1,468
1,103
1,1301,1091,119
1,483
171110
111
113 116104 117 119
7474120 100100 9999
144
122
143 123
97
142124124124
79
141125
80
126
9481
12793
83
129
8490 85
131
86
Design patentsUtility patents
Figure 23: Top districts, by new cases including one or more design patents, 2007-2016 (and showing percentage change from 2015)
0 50 100 150 200 250 300 350 400 450Cases filed
C.D.Cal.
S.D.N.Y.
N.D.Ill.
S.D.Cal.
D.N.J.
D.Colo.
N.D.Cal.
S.D.Fla.
E.D.Tex.
N.D.Ohio
375 cases f iled since 201165 cases f iled in 2016
+4.8% from 2015
115 cases f iled since 201124 cases f iled in 2016
+4.3% from 2015
74 cases f iled since 201116 cases f iled in 2016
+77.8% f rom 2015
66 cases f iled since 201114 cases f iled in 2016
+0.0% f rom 2015
58 cases f iled since 20119 cases f iled in 2016+800.0% from 2015
55 cases f iled since 20116 cases f iled in 2016-25.0% f rom 2015
51 cases f iled since 201114 cases f iled in 2016
+16.7% from 2015
47 cases f iled since 20119 cases f iled in 2016-25.0% from 2015
45 cases f iled since 201110 cases f iled in 2016
-16.7% f rom 2015
43 cases f iled since 20117 cases f iled in 2016+75.0% f rom 2015
Although comprising a smaller fraction of the litigated patents, design patent litigation is far more consistent than utility patent litigation. Design patent litigation remains highly concentrated in the Central District of California, and that district saw its total increase 4.8% over 2015. The Southern District of New York, still in a distant second place, saw its share increase by 4.3%.
Lex Machina – Patent Litigation Year in Review 201615
ANDA Litigation
Figure 24: New ANDA cases, by year, 2007-2016
2009 2010 2011 2012 2013 2014 2015 20160
50
100
150
200
250
300
350
400
450
AND
A ca
ses f
iled 316
468
295292
433
263260
236
Figure 25: New ANDA cases, by month, 2013-2016
2013 2014 2015 2016 2017Quarter / Year
0
10
20
30
40
50
60
70
AND
A ca
ses f
iled
67
6259
30 30
3229
2933
33
28
3434
34
53
27
35
10
3636
2525 2525
11
37 37
50
2424
24
38
49
39
22
14
40
47
212020
1919 19 191919
18
Lex Machina enables users to track and analyze ANDA litigation. ANDA (Abbreviated New Drug Application) cases are related to the filing of these drug applications at the FDA. The Hatch-Waxman Act provides a streamlined process with specific timelines for litigation triggered by the application process. ANDA cases rose sharply in 2014 into 2015, but have declined in 2016 to a level more commensurate with 2010-2011. ANDA litigation is heavily concentrated in the Districts of New Jersey and Delaware, each of which has had significantly more cases filed than the all districts below the top ten.
Lex Machina will be releasing our third Hatch-Waxman Report in later this spring - make sure to get a copy for updated data and more analysis!
Lex Machina – Patent Litigation Year in Review 2016 16
Figure 26: Top districts, by new ANDA cases filed, 2009-2016
0 100 200 300 400 500 600 700 800 900 1000 1100 1200ANDA cases filed
D.Del.
D.N.J.
Districts other than topten (combined)
S.D.N.Y.
N.D.W.Va.
S.D.Ind.
N.D.Ill.
D.Md.
E.D.Tex.
D.Nev.
S.D.Fla.
1,065 cases
830 cases
215 cases
158 cases
57 cases
52 cases
51 cases
38 cases
37 cases
30 cases
30 cases
Figure 27: Top districts, by new ANDA cases filed in 2016 (and percentage change from 2015)
0 20 40 60 80 100 120 140 160ANDA cases filed in 2016
D.Del.
D.N.J.
E.D.Va.
S.D.Ind.
E.D.Tex.
N.D.W.Va.
N.D.Ill.
N.D.Tex.
D.Nev.
E.D.N.Y.
151 cases-19.7%
109 cases-44.4%
17 cases750.0%
8 cases33.3%
7 cases0.0%
6 cases-71.4%
4 cases-50.0%
4 cases33.3%
3 cases0.0%
2 cases0.0%
Lex Machina – Patent Litigation Year in Review 201617
Figure 28: Top Article III judges, by new cases filed in 2016
Judges
The top judges reflect the busiest districts: the charts are topped by judges from the Eastern District of Texas and from the District of Delaware.
Judge Gilstrap of E.D.Tex. has an astounding 1,119 cases assigned to him in 2016 - the fourth year in a row that he has had the most patent cases of any judge. Judge Gilstrap’s large caseload comes in part from him being assigned a large percentage of cases filed in the court’s Marshall Division.
Judge Gilstrap’s large number of cases also put him at the top of the charts for most cases with findings and summary judgments. However, Judge Andrews of the District of Delaware is second on both lists.
* See, e.g., Eastern District of Texas, General Order Assigning Criminal and Civil Actions (No. 16-7, July 15, 2016) assigning Judge Gilstrap 95% of civil litigation (including patents) filed in the Marshall Division, all Marshall Division Criminal cases, as well as ad additional 20% of Texarkana civil cases (including patent) AND 30% of the patent cases filed in the Tyler division. See, e..g. http://www.txed.uscourts.gov/cgi-bin/view_document.cgi?document=25551
Rank Judge Name Home District
0 100 200 300 400 500 600 700 800 900 1000 1100 1200Cases
1 Rodney Gilstrap E.D.Tex.2 Robert Schroeder E.D.Tex.3 Leonard Stark D.Del.4 Gregory Sleet D.Del.5 Richard Andrews D.Del.6 Sue Robinson D.Del.7 Amos Mazzant E.D.Tex.8 George Wu C.D.Cal.9 James Selna C.D.Cal.10 Andrew Guilford C.D.Cal.
S. Otero C.D.Cal.12 David Godbey N.D.Tex.
John Kronstadt C.D.Cal.14 Roy Dalton M.D.Fla.15 Barbara Lynn N.D.Tex.
1,119488
146125120
9151
3631282826262423
Figure 29: Top magistrate judges, by new cases filed in 2016
Rank Magistrate Name Home District
0 100 200 300 400 500 600 700 800Cases
1 Roy Payne E.D.Tex.2 John D. Love E.D.Tex.3 Christopher J. Burke D.Del.4 K. Nicole Mitchell E.D.Tex.5 Jean P. Rosenbluth C.D.Cal.6 Nathanael Cousins N.D.Cal.7 Mark Falk D.N.J.8 Caroline M. Craven E.D.Tex.9 Karen M. Williams D.N.J.
Michael R. Wilner C.D.Cal.Tonianne J. Bongiovanni D.N.J.
12 Douglas E. Arpert D.N.J.E.D.Va.
14 Gregory J. Kelly M.D.Fla.15 Suzanne H. Segal C.D.Cal.
76891
7765
4036333028282827272625
Lex Machina – Patent Litigation Year in Review 2016 18
Figure 30: Top judges, by cases reaching decisions on patent infringement, validity, or enforceability in 2016
Figure 31: Top judges, by cases having summary judgment on patent infringement, validity, or enforceability (showing judges having 3 or more) in 2016
Rank Judge Name Home District
0 10 20 30 40 50 60 70Cases
1 Rodney Gilstrap E.D.Tex.2 Richard Andrews D.Del.3 Jerome Simandle D.N.J.4 Leonard Stark D.Del.5 Gregory Sleet D.Del.6 Sue Robinson D.Del.7 John Kronstadt C.D.Cal.8 Beth Freeman N.D.Cal.9 James Selna C.D.Cal.
Robert Schroeder E.D.Tex.
6436
2824
2015
109
77
Rank Judge Name Home District
0 5 10 15 20 25 30Cases
1 Rodney Gilstrap E.D.Tex.2 Richard Andrews D.Del.3 Leonard Stark D.Del.4 Beth Freeman N.D.Cal.
John Kronstadt C.D.Cal.6 Ann Montgomery D.Minn.
Edward Chen N.D.Cal.Jon Tigar N.D.Cal.Manuel Real C.D.Cal.Paul Maloney W.D.Mich.William Alsup N.D.Cal.
2710
655
333333
Lex Machina – Patent Litigation Year in Review 201619
Parties
The top plaintiffs of 2016 include Shipping and Transit (see next box), Uniloc, and Sportbain Holdings. The top ten plaintiffs are all patent monetization entities (PMEs),* The only company shown above in the top 15 that is not a PME is Whirlpool Corp, ranked 15th. Prior to 2015, Whirlpool was not a high-volume plaintiff and never filed more than 5 cases in a calendar year. However, in 2015 Whirlpool filed 14 patent cases, followed by 28 in 2016. Samsung remains the top defendant with 37 patent cases filed against it in 2016. Samsung topped the chart last year in 2015 with 64 cases as well). Apple, the leading defendant in 2013 and 2014, defended fewer cases in 2016 (26 cases) than LG Electronics (28 cases). It is worth noting that, even as top defendant in 2016, Samsung has been sued significantly less (37 cases in 2016) than the top defendant of previous years (e.g. 2015, Samsung had 64 cases, 2014 Apple had 58 cases, and in 2013 Apple had 59 cases). Each party is shown alongside the district in which the majority of their cases appear (the top court) and the percentage of the party’s 2016 cases filed in that court.
The majority of both plaintiffs and defendants have the Eastern District of Texas as their top court. The only other court that appears as the top court for the listed defendants is the District of Delaware.
* The top plaintiffs are all considered as “High-volume plaintiffs” by definition, as each brought more than 10 cases within the 365 day span that was 2016.
Figure 32: Top plaintiffs, by new cases in 2016Rank Name Top court % cases in top
court
0 20 40 60 80 100 120Total cases
1 Shipping and Transit, LLC S.D.Fla. 58.9%2 Uniloc Luxembourg S.A. E.D.Tex. 100.0%
Uniloc USA, Inc. E.D.Tex. 100.0%4 Sportbrain Holdings LLC N.D.Ill. 100.0%5 Blackbird Tech LLC D.Del. 100.0%
Hawk Technology Systems, LLC E.D.Tex. 14.6%7 Guyzar, LLC E.D.Tex. 100.0%
Symbology Innovations, LLC E.D.Tex. 48.6%9 T-Rex Property AB N.D.Ill. 42.4%10 Codec Technologies LLC E.D.Tex. 100.0%
Global Equity Management (SA) Pty. Ltd. E.D.Tex. 100.0%12 Pherah LLC E.D.Tex. 100.0%13 Digital Audio Encoding Systems, LLC D.Del. 100.0%
Solocron Education, LLC E.D.Tex. 100.0%15 Whirlpool Corporation E.D.Tex. 100.0%
107 cases87 cases87 cases
75 cases48 cases48 cases
35 cases35 cases
33 cases32 cases32 cases
30 cases29 cases29 cases28 cases
Note: Top party charts exclude declaratory judgment cases.
Lex Machina – Patent Litigation Year in Review 2016 20
Figure 33: Top defendants, by new cases in 2016Rank Name Top court % cases in t..
0 5 10 15 20 25 30 35 40 45Total cases
1 Samsung Electronics America, Inc. E.D.Tex. 45.9%2 Samsung Electronics Co., Ltd. E.D.Tex. 45.2%3 LG Electronics, Inc. E.D.Tex. 53.6%4 Apple Inc. E.D.Tex. 38.5%5 Amazon Web Services, Inc. E.D.Tex. 91.3%6 ASUS Computer International E.D.Tex. 40.9%7 Huawei Device USA Inc. E.D.Tex. 66.7%
Huawei Technologies Co., Ltd. E.D.Tex. 61.9%Vadata, Inc. E.D.Tex. 100.0%
10 Actavis Inc. D.Del. 50.0%Amazon.com, Inc. D.Del. 20.0%AT&T Mobility LLC E.D.Tex. 60.0%
13 Apotex Inc. D.Del. 78.9%HTC America, Inc. E.D.Tex. 52.6%Huawei Technologies USA, Inc. E.D.Tex. 68.4%Microsoft Corporation E.D.Tex. 31.6%Mylan Pharmaceuticals, Inc. D.Del. 36.8%Teva Pharmaceuticals USA, Inc. D.Del. 57.9%
37 cases31 cases
28 cases26 cases
23 cases22 cases
21 cases21 cases21 cases
20 cases20 cases20 cases
19 cases19 cases19 cases19 cases19 cases19 cases
Figure 34: Top high volume plaintiffs by cases filed 2012-2016 (showing distribution of cases by year, with higher concentrations shown in larger red and lower concentrations in thinner blue)
Lex Machina – Patent Litigation Year in Review 201621
Subscribers can explore up-to-date analytics that include cases filed after December 31, 2016 in Lex Machina by clicking here! *
Shipping and Transit previously did business under the name ArrivalStar. The entity has featured as a top plaintiff in previous years (as the top plaintiff of 2013 with 137 cases that year, and ranked fourth in 2015 with 65 cases). In total, the two entities have brought over 500 patent lawsuits to date, but have not prevailed on the merits in any case so far.
The median time to termination for cases brought by Shipping and Transit / ArrivalStar is only 81 days.
* Note: Live analytics may differ slightly from the charts shown here due to Lex Machina’s ongoing data quality efforts.
Party Profile: Shipping and Transit / Arrival Star
Lex Machina – Patent Litigation Year in Review 2016 22
Law Firms
This report considers law firms based primarily in Delaware or Texas separately from large, national (or international) firms and/or boutiques with a national reach (all classified below as “national”).
Worth noting is that the law firm with the most plaintiff-side cases in 2016, Ferraiuoli LLC defies this categorization. Ferraiuoli handled 206 cases in 2016 for plaintiffs, primarily in the Eastern District of Texas, but is headquartered in San Juan, Puerto Rico.
The top national firm of 2016 by plaintiff representation was Russ, August & Kabat with 110 cases (up from fourth in last year’s ranking), followed by McCarter English with 74 cases (last report’s top firm with 121 cases in 2015). In cases filed in 2016, Russ, August & Kabat have represented LPL L Licensing and Phoenix Licensing, each of which filed more than 20 cases that year. McCarter English has represented Uniloc in 2016, along with several pharmaceutical companies (including Astrazeneca, Horizon Pharma, and Novartis). The top national firm of 2016 by defendant representation is Fish & Richardson with 160 cases – more than double the next leading firm (Winston & Strawn, 63 cases). Also among the top firms are Perkins Coie (61 cases), and Alston & Bird (51 cases). Fish & Richardson’s clients include Huawei, Apple, Nvidia, Citrix, and LG. Among Texas firms, Gilliam & Smith leads with 260 cases in 2016. Capshaw DeRieux with 216 cases and Kizzia & Johnson with 129 cases follow. Although headquartered in Los Angeles (and therefore not included in the chart below), the firm of Hipskind & Berger has had 85 cases in 2016 representing plaintiffs in Texas - enough to rank them 5th. Among Delaware firms, Morris, Nichols, Arsht & Tunnell tops the list with 181 cases in 2016 (as it did last year with 251 cases in 2015). The Devlin law firm had 127 cases in 2016 for second rank, and Potter Minton 119 cases for third.
Figure 35: National law firms, by cases filed in 2016 representing plaintiffs
0 20 40 60 80 100 120Cases
1 Russ August & Kabat2 McCarter & English3 Finnegan, Henderson, Farabow, Garrett & Dunner4 Olavi Dunne5 Zimmerman Weiser & Paray6 Pepper Hamilton7 Farney Daniels
McKool Smith9 Cotman IP Law Group10 Fitzpatrick, Cella, Harper & Scinto11 Pia Anderson Dorius Reynard & Moss12 Fish & Richardson
Quinn Emanuel Urquhart & Sullivan14 Garteiser Honea15 Jones Day
110 cases74 cases
71 cases55 cases
53 cases36 cases35 cases35 cases
33 cases32 cases31 cases
29 cases29 cases
26 cases24 cases
Note: Excludes declaratory judgment cases.
Lex Machina – Patent Litigation Year in Review 201623
Figure 36: National law firms, by cases filed in 2016 representing defendants
0 20 40 60 80 100 120 140 160 180
1 Fish & Richardson2 Winston & Strawn3 Perkins Coie4 Alston & Bird5 Baker Botts
K&L Gates7 Fenwick & West8 DLA Piper9 Wilson Sonsini Goodrich & Rosati10 Duane Morris11 Quinn Emanuel Urquhart & Sullivan12 Greenberg Traurig13 Jones Day
Kilpatrick Townsend & Stockton15 Morgan Lewis & Bockius
160 cases63 cases
61 cases51 cases50 cases50 cases49 cases
44 cases42 cases41 cases40 cases39 cases
32 cases32 cases31 cases
Figure 37: Texas law firms, by cases filed in 2016
0 50 100 150 200 250 300Cases
1 Gillam & Smith2 Capshaw DeRieux3 Kizzia & Johnson4 The Dacus Firm5 Chaudhari Law6 Findlay Craft7 Tadlock Law Firm8 Brandt Law Firm9 Ward & Smith Law Firm10 Wilson Robertson & Cornelius
260 cases216 cases
129 cases102 cases
98 cases82 cases
75 cases73 cases71 cases
68 cases
Figure 38: Delaware law firms, by cases filed in 2016
0 50 100 150 200Cases
1 Morris, Nichols, Arsht & Tunnell2 Devlin Law Firm3 Potter Minton4 Stamoulis & Weinblatt5 Farnan
181 cases127 cases
119 cases93 cases
64 cases
Note: Totals for Delaware and Texas firms represent cases overall and are not limited to those districts.
Lex Machina – Patent Litigation Year in Review 2016 24
Figure 39: Most frequently asserted patents in 2016
Patents and Patent Findings
Note: Excludes declaratory judgment cases.
Rank Patent No. Cases Patent Title assignee inventors
0 20 40 60 80 100 120Cases
1 6415207 114 cases System and method for automatically providing vehicle statusinformation Global Res Systems Inc Jones Martin Kelly
2 6763299 110 cases Notif ication systems and methods with notif ications based uponprior stop locations Arrivalstar Inc Jones M Kelly
3 6904359 89 cases Notif ication systems and methods with user-def inablenotif ications based upon occurance of events Arrivalstar Inc Jones M Kelly
4 7400970 83 cases System and method for an advance notif ication system formonitoring and reporting proximity of a vehicle Melvino Technologies Ltd Jones Martin Kelly
5 7454002 76 cases Integrating personal data capturing functionality into a portablecomputing device and a wireless communication device Sportbrain Inc Gardner Deane; Kurobe Mitz
6 RE43462 48 cases Video monitoring and conferencing systemSchwab Barry H; WashinoKinya
Schwab Barry H; WashinoKinya
7 5845070 35 cases Security system for internet provider transaction Auric Web Systems Inc Ikudome Koichiro
8424752 35 cases System and method for presenting information about an objecton a portable electronic device Rothschild Leigh M Rothschild Leigh M
8651369 35 cases System and method for presenting information about an objecton a portable device Rothschild Leigh M Rothschild Leigh M
8936190 35 cases System and method for presenting information about an objecton a portable electronic device
Ariel Inv S Llc; RothschildLeigh M Rothschild Leigh M
11 6430603 34 casesSystem for direct placement of commercial advertising, publicservice announcements and other content on electronicbillboard displays
World Theatre Inc Hunter Charles Eric
7382334 34 cases Digital information system T Rex Property Ab Dahlgren Mats; Hylin Mats;Jonason Joakim
RE39470 34 cases Digital information system T Rex Property Ab Dahlgren Mats; Hylin Mats;Jonason Joakim
14 6690400 33 cases Graphic user interface for resources management of superoperating system based computers Flash Vos Inc Moayyad Parviz; Rafizadeh
Schumann
7356677 33 cases Computer system capable of fast switching between multipleoperating systems and applications Flash Vos Inc Rafizadeh Schumann
Lex Machina’s platform recognizes patent findings (any determination on the validity, infringement, and/or unenforceability of a patent). These findings reveal useful relationships between the type of finding and the procedural method used to reach the finding. For example, findings of infringement tend to come from either trial or from consent or default judgment, while findings of non-infringement or invalidity are more likely to have come from summary judgment.
On June 19, 2014, the Supreme Court decided Alice v. CLS Bank, a case interpreting how 35 U.S.C § 101, the statute governing patentable subject matter, applies to computer-implemented inventions. In the wake of the decision, invalidations under § 101 have rose to record levels. Invalidations under § 101 swung wildly by quarter in 2015, but have steadily declined in 2016.
Lex Machina – Patent Litigation Year in Review 201625
Figure 40: Patent judgment types by finding, for findings in 2016
Infringement 208 cases
No Infringement 192 cases
Invalidity 114 cases
Unenforceability 4 cases
51.9%
23.6%
7.2%
19.2%
1.6%
15.1%31.3%
6.3%48.4%
0.5%
2.6%14.9%6.1%
43.0%31.6%
1.8%
25.0%
75.0%
Consent JudgmentDefault JudgmentJudgment on the PleadingsSummary JudgmentTrialJMOL
Lex Machina – Patent Litigation Year in Review 2016 26
Figure 41: Patent findings by judgment types, for findings in 2016
Consent Judgment
170 cases
Default Judgment
54 cases
Judgment on thePleadings
61 cases
Summary Judgment
137 cases
Trial
66 cases
JMOL
3 cases
63.5%4.1%
35.3%
5.6%
90.7%
5.6%
80.3%
19.7%
10.9%
26.3%
67.9%
0.7%
60.6%
25.8%
43.9%
4.5%
66.7%
33.3%
InfringementInvalidityNo InfringementUnenforceability
Lex Machina – Patent Litigation Year in Review 201627
Figure 42: Patents invalidated, 2013-2016, under 35 U.S.C. § 101 for lack of patentable subject matter, by quarter
2013 Q2 2013 Q4 2014 Q2 2014 Q4 2015 Q2 2015 Q4 2016 Q2 2016 Q4Quarter / year of finding
0
10
20
30
40
50Pa
tent
s in
valid
ated
und
er s
101
18 patents
49 patents
16 patents
11 patents
29 patents
42 patents
30 patents30 patents
9 patents
1 patents1 patents5 patents
37 patents
35 patents
3 patents3 patents
Figure 43: Patents invalidated, 2013-2016, by basis
2013 Q2 2013 Q4 2014 Q2 2014 Q4 2015 Q2 2015 Q4 2016 Q2 2016 Q4Quarter / year of finding
0
10
20
30
40
50
Pate
nts
inva
lidat
ed
Other basis112 Written Description
112 Enablement
112 Def initeness 103 Obviousness
102 Anticipation / Novelty
101 Subject Matter
6/2/2014: Nautilus decision, 6/19/2014: Alice decision Invalidity Basis101 Subject Matter102 Anticipation / Novelty103 Obviousness112 Definiteness112 Enablement112 Written DescriptionOther basis
Lex Machina – Patent Litigation Year in Review 2016 28
Figure 44: Top Districts by cases with patents invalidated under 35 U.S.C. § 101 for lack of patentable subject matter (cases filed 2012-2016 with invalidity finding in 2016)
Rank District
0 1 2 3 4 5 6 7 8 9 10Cases
1 D.Del.
2 C.D.Cal.
3 N.D.Ill.
E.D.Tex.
5 S.D.Cal.
N.D.Cal.
7 W.D.Pa.
N.D.Ga.
E.D.Va.
10 S.D.N.Y.
D.Mass.
8 cases
6 cases
5 cases
5 cases
4 cases
4 cases
3 cases
3 cases
3 cases
2 cases
2 cases
Lex Machina – Patent Litigation Year in Review 201629
PreliminaryInjunction
14 cases
0
2
4
6
8
10
12
14
16
18
20
Tim
e to
rem
edy (
mon
ths)
2.0
3.8
13.5
Remedy Timing and Case Resolutions
Understanding timing data is one of the best uses of Legal Analytics - knowing if and when an injunction will be decided makes for better decision-making: clients can know when their bills will change, lawyers can plan their schedules with greater confidence, and budgets can accurately account for the costs. These charts show the median time to an event (the middle number between the shaded boxes). The median represents the middle value, where as many took longer than the median as took shorter than the median, and serves as a simple and useful average. The median time for a preliminary injunction is 3.8 months, and for permanent injunction is 11.6 months. Where the median lies in relation to the edges of the boxes also provides useful data. For example in looking at the preliminary injunction chart, the median of 3.8 months lies much closer to the top of the box (2 months) than the bottom (13.5) months. This means that timing favors an earlier issuance: the fastest half of injunctions are issued in less than 4 months while the next quarter of injunctions are spread out over 10 months, and the final quarter over even more time.
PermanentInjunction
219 cases
0
5
10
15
20
25
30
35
40
45
50
Tim
e to
rem
edy (
mon
ths)
5.4
11.6
23.8
Figure 45: Case reaching injunction, in cases terminating 2012-2016
Lex Machina – Patent Litigation Year in Review 2016 30
Lex Machina generates a resolution for each case, reflecting how the case terminated. The majority - 74.6% - of patent cases terminating between 2009 and 2016 settled. Of those that did not, the largest block (15.3% of terminated cases) reach a procedural outcome, such as transfer or consolidation. Wins by the claimant (6.1%) are more common than wins for the claim defendant (4.0%).
Looking at cases terminating in 2016 alone, the settlement rate increased to 76.7%, mainly at the expense of claimant and claim defendant wins (5.5% and 4.0% respectively).
Figure 46: Case resolutions, in cases terminating 2009-2016
Claimant Win Claim Defendant Win Likely Settlement Procedural0K
5K
10K
15K
20K
25K
Cas
es
26,010 cases74.6%
2,141 cases6.1% 1,408 cases
4.0%
5,322 cases15.3%
Figure 47: Case resolutions, in cases terminating in 2016
Claimant Win Claim Defendant Win Likely Settlement Procedural0K
1K
2K
3K
4K
Cas
es
4,199 cases76.7%
301 cases5.5% 218 cases
4.0%
758 cases13.8%
Lex Machina – Patent Litigation Year in Review 201631
Damages
Compensatory damages continue to be awarded in few cases, around 1.8 % of the terminated cases filed since the year 2000. 2015 saw the award of approximately $750m total in compensatory damages.
Players in the patent litigation space should be armed with knowledge of how asymmetric patent awards can be. Most individual awards are small, with a few outliers driving the high totals. Among all damages awarded in cases filed since the year 2000, 90% of the total compensatory awards in cases have been less than $9.6m, 75% less than $1.7m, and half less than approximately $170,000. Of damages granted since 2000, juries have granted about seven times more than judges ($15 billion versus $1.9 billion).
Understanding the propensity of districts to dispense damages directly impacts litigation exposure, as the amount of damages awarded varies disproportionately across districts. Relative to the number of cases filed in each jurisdiction, the Eastern District of Texas and the Southern District of California were the most generous while the Middle District of Florida and the Eastern District of Michigan were least generous. looking at median compensatory award per case by district, Delaware, Eastern Virginia, and Eastern Texas are the most generous, followed by a steep drop-off.
Figure 48: Cases, 2000-2016, with damages
Figure 49: Total damages awarded during 2016 in cases filed 2000-2016, by type
* Total does not include costs, attorneys fees, or pre/post-judgment interest.
Note: Some cases may include multiple causes of action, for example, both patent and trademark claims. When damages in these cases are awarded and the apportionment between claim types cannot be determined, Lex Machina classifies them as “Other / Mixed Damage Types.” These charts exclude damages explicitly based on non-patent claims and theories (e.g. trademark damages based on infringers profits), even awarded in a case with patent claims.
Live analytics may differ slightly from the charts shown here due to Lex Machina’s ongoing data quality efforts.
Cases terminated since 2000 54,429Cases terminated since 2000 on the merits 6,167 11.3% of terminated casesCases terminated since 2000 on the merits with compensatory damages
959 1.8% of terminated cases
Compensatory damages: Reasonable royalties $3,399,970,608.18 Lost profits $28,505,075.30 Other / Mixed damage types $63,396,330.03Total damages* $3,491,872,013.51
Lex Machina – Patent Litigation Year in Review 2016 32
Figure 50: Median damages, 2000-2016, by year and type
Year Reasonable Royalty Lost ProfitsOther / Mixed Damage
Types Attorneys' Fees Costs
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016 $20,53277 cases
$24,44283 cases
$15,974100 cases
$34,27092 cases
$32,02885 cases
$18,75680 cases
$11,34472 cases
$21,94765 cases
$21,00982 cases
$28,74386 cases
$9,34469 cases
$19,21155 cases
$17,29850 cases
$17,63235 cases
$10,71742 cases
$9,4869 cases
$3734 cases
$57,65926 cases
$220,28733 cases
$77,56333 cases
$118,32122 cases
$96,24027 cases
$88,62934 cases
$47,03330 cases
$94,68838 cases
$50,79634 cases
$221,70830 cases
$37,36928 cases
$39,18229 cases
$190,00029 cases
$140,63130 cases
$9,64325 cases
$39,58814 cases
$9,7655 cases
$67,78518 cases
$360,00013 cases
$1,800,00017 cases
$484,36022 cases
$150,50016 cases
$177,40225 cases
$127,00031 cases
$174,31226 cases
$130,00030 cases
$210,00031 cases
$250,00033 cases
$224,11728 cases
$118,07636 cases
$74,35231 cases
$51,93736 cases
$26,04316 cases
$5,00020 cases
$1,631,2318 cases
$2,541,3337 cases
$1,324,31811 cases
$5,000,0004 cases
$1,560,27315 cases
$6,836,95916 cases
$19,942,12313 cases
$3,261,07712 cases
$1,817,60317 cases
$613,33811 cases
$2,344,5128 cases
$450,00013 cases
$1,349,47211 cases
$150,0108 cases
$69,7987 cases
$14,3283 cases
$2,100,0001 cases
$3,522,60036 cases
$6,459,33128 cases
$4,800,00029 cases
$311,37929 cases
$1,975,91641 cases
$1,579,99736 cases
$2,172,61731 cases
$3,714,81836 cases
$2,743,80042 cases
$973,36035 cases
$1,201,79121 cases
$1,738,55724 cases
$1,443,68623 cases
$450,64724 cases
$697,79310 cases
$292,7227 cases
$129,8403 cases
$0.10M $1.00M $10.00M $100.00M $1,000.00MDamages amount (shown on truncated logarithmic scale)
ReasonableRoyalty
Lost Profits
Other / MixedDamage Types
25P: $188K
25P: $158K
25P: $25K
Max: $2,540.00M
Max: $1,168.47M
Max: $1,725.00M
90P: $48.43M
90P: $47.97M
90P: $6.77M
Median: $1.84M
Median: $1.60M
Median: $0.12M
75P: $13.7M
75P: $9.8M
75P: $1.0M
Figure 51: Damages percentiles, 2000-2016, by type
Note: In cases where multiple damages awards were made in separate years, the total sum is reflected under the most recent year.
Lex Machina – Patent Litigation Year in Review 201633
Figure 52: Damages by judgment type, awarded 2000-2016
Judgment Type
Consent Judgment Default Judgment Judge Jury Trial$0M
$5,000M
$10,000M
$15,000M
$20,000M
Dam
ages
awa
rded
138 cases11.4% of damages
$2,596M
413 cases78.4% of damages
$17,826M
208 cases7.9% of damages
$1,787M268 cases
2.3% of damages$517M
$0M $2M $4M $6M $8M $10M $12M $14M $16M $18M $20MMedian compensatory damages per case
D.Del.
E.D.Tex.
E.D.Va.
D.Mass.
S.D.Cal.
N.D.Cal.
N.D.Tex.
E.D.Mich.
D.Utah
D.N.J.
W.D.Wash.
D.Minn.
N.D.Ohio
C.D.Cal.
N.D.Ill.
S.D.N.Y.
N.D.Ga.
M.D.Fla.
D.Colo.
$7.37M111 cases with damages
$0.14M277 cases with damages
$0.12M100 cases with damages
$16.29M43 cases with damages
$2.68M22 cases with damages
$0.78M31 cases with damages
$0.65M26 cases with damages
$0.64M85 cases with damages
$0.61M41 cases with damages
$0.31M36 cases with damages
$0.24M17 cases with damages
$0.20M49 cases with damages
$0.17M14 cases with damages
$0.16M25 cases with damages
$0.14M22 cases with damages
$0.13M74 cases with damages
$0.11M33 cases with damages
$0.06M55 cases with damages
$0.04M14 cases with damages
National median: $786,698
Note: Includes costs, and attorneys’ fees.
Figure 53: Median damages, 2000-2016, by year and type
Note: In cases where multiple damages awards were made in separate years, the total sum is reflected under the most recent year.
Lex Machina – Patent Litigation Year in Review 2016 34
Figure 54: IPR and CBM petitions filed, 2012-2016, by month
2013 2014 2015 2016 2017Month / Year
0
20
40
60
80
100
120
140
160
180
CBM
and
IPR
revie
w pe
titio
ns
107106102
114101
100
17
116 117
96
120
2424 26 27
89
30
31
184
131131131
182
132
179
136136
136
38
177
138
77
139
7673
143
45
145 145
69
26
166
148
165
149
164
65
22
10 1010
1010
21
1111
9 9 99 9
54
1212
88 8
8
62
1
19 19
1313
77
154159
22 2
18
14 146
6
155
60
33
1715
55 55
44
1616
16
Trial typeCBMIPR
PTAB
The PTAB (Patent Trial and Appeal Board), was created by the America Invents Act and began hearing petitions for Covered Business Method reviews (CBMs) and Inter Partes Reviews (IPRs) on September 16, 2012, the first day the procedure was available.
IPR activity declined slightly in 2015 but remains much more similar to 2014 than previous years. Lex Machina’s trial flow diagram provides insight into how the PTAB is disposing of petitions. Showing the flow of cases from the filing of a petition all the way through final written decision (but also including settlement and procedural outcomes) allows practitioners to easily understand the likelihood of each result.
See Lex Machina’s upcoming PTAB report for a deeper analysis of PTAB in 2016.
Figure 55: Trial Flow, PTAB IPR petitions, filed 2012 - 2016 and and terminated in 2016
Subscribers can click here to explore further, but note that live analytics may differ slightly from the charts shown here due to Lex Machina’s ongoing data quality efforts.
Lex Machina – Patent Litigation Year in Review 201635
Disposition Bar
ton
Bul
lock
Cha
rnes
k i
Esse
x
Gild
ea
Har
ris
Lord
Luck
ern
Pend
er
Rog
ers
Shaw
Cease & Desist Order
Complaint Withdrawn
Consent Order
General Exclusion Order
Limited Exclusion Order
No Violation Found
Other
Settlement
Violation Found 2
10
3
5
4
2
1
4
2
4
23
15
6
1
4
9
4
1
11
2
2
2
1
8
2
8
18
3
12
5
4
5
5
4
2
1
1
1
1
1
1
5
25
8
4
3
6
6
2
11
29
2
14
10
5
6
10
10
9
16
1
5
11
2
2
5
7
6
31
4
14
11
5
7
7
7
2
2
1
3
1
3
Figure 56: ITC investigations filed, 2007-2015
2007 2008 2009 2010 2011 2012 2013 2014 2015 20160
10
20
30
40
50
60
70
ITC
337
Inve
stig
atio
ns
71
42
4140
3936
54
3432
57
Figure 57: ITC dispositive outcomes, by current ALJ, investigations noticed and terminating 2007-2015
ITC
Lex Machina – Patent Litigation Year in Review 2016 36
Using Boxplots to Understand Timing
Lex Machina’s analytics use a data visualization known as the boxplot to convey information about the timing of significant events in a case. Knowing how to interpret this data gives you an advantage when it comes to strategy, budgeting, and setting expectations, as well as in other decisions that involve case timing.
Consider a newly filed case: Regardless of whether you’re an outside counsel, say, trying to determine how large of a flat fee to charge or trying to make sure two trials don’t overlap, or an inside counsel estimating legal spend and evaluating a firm’s proposed budget, case timing matters. Knowing the lower and upper bounds of how long it may reasonably take the case to reach injunction can give both kinds of counsel a strategic advantage over opponents lacking such nuanced information. Moreover, knowing the best and worst case scenarios for timing, or exactly how likely it is that a case will be active in 6 months enables more far-sighted contingency planning.
A boxplot summarizes a series of data points to help you understand the shape, or distribution of the values in those points. The boxplot is drawn based on five numbers: the median, the upper and lower quartiles, and the whiskers for a distribution.
Paying attention to these key parts of the plot will help you quickly understand what you need to know. Although boxplots provide a wealth of information, the four observations below, in order from simplest onwards, are all one needs to easily grasp the significance of a boxplot.
Median: the middle dividing line of the box splits the data points evenly so that 50% fall to either side. It’s a form of average that gives a single number representation of what to reasonably expect.
Box bounds: the box encloses the middle-most 50% of the datapoints (from the 25th percentile to the 75th), with 25% of the datapoints falling outside to either side. This makes the box a good representation of the range one can reasonably expect.
Box compressed or elongated: a more compressed box means that more datapoints fall into a smaller range of time and therefore are more consistent; in contrast a longer box means that the datapoints are spread out over a wider time period and are therefore less predictable.
Whiskers: Whiskers are drawn to show the outside bounds of reasonable expectation, beyond which datapoints are considered outliers.1
1 By statistical convention, boxplots define outliers as points beyond more than 1.5 times the width of the box (sometimes called the “interquartile range”).
Lex Machina – Patent Litigation Year in Review 201637
In 2016, Lex Machina rolled out new key features that give our subscribers unprecedented power to analyze and easily discern trends in the cases that matter to them.
Although we make software updates to the platform every week, below are some of the major enhancements which we introduced in 2016:
• Attorney Data Engine (Feb): Extracts attorney and law firm data from document signature blocks and Pro Hac Vice (PHV) applications.
• Mass Counterfeiter Default Damages (April): Separates trademark damages awarded against long lists of aliases and businesses (often with uncertain or overlapping real identities) when the damages are awarded as a rate (e.g. $1m against each defendant in attached schedule A).
• Orange Book Data case list columns (May): See which drugs and ingredients are at issue in ANDA cases, and which patents are related to particular drugs or ingredients.
• Securities Practice Area (June): Explore securities with findings and damages specifically designed for securities.
• Courts and Judges Comparator App (Aug): Model venue selection or transfer options with only a few clicks.
• Antitrust Practice Area (Sept): The familiar power of Lex Machina with new features, findings, and damages for antitrust cases.
• Law Firm Comparator App (Sept): Compare outside counsel on timing and results, or benchmark your firm against your competitors.
• Magistrate Judge Data (Sept): Get a more accurate intelligence on how magistrate judges run their cases.
• Multidistrict Litigation (Sept): Easily pivot between MDLed cases and the master case, or to other related cases within the same MDL proceeding.
• New Timing Events (Sept): Improve budgeting with time to contested dismissal, summary judgment or class certification.
• Parties Comparator App (Nov): Learn if your company’s legal strategy is working as well as your competitors, or demonstrate how your law firm’s clients do better than those represented by the other guy.
• Damages Explorer App (Nov): Analyze damages awards in greater detail.
• Help Center (Nov): A new help center provides better answers to common questions, as well as access for subscribers to all of Lex Machina’s published reports (like this one!)
Lex Machina is also looking forward to launching four new practice areas in 2017: Bankruptcy, Commercial Litigation, Products Liability, and Employment.
Lex Machina Product Enhancements in 2016
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