I get asked a lot what the current statistics are for patent trials in the district - is this a 2013 where defendants are winning 2-1 or a 2014 where it's the other way, or a 2015 where it's even. Well, yes, no and yes. So far.
There have been twelve patent trials in the districts so far this year, but I count once (Metaswitch) twice because both sides were claiming their patents had been infringed, and the Marshall jury found none were infringed, and, hysterically (easy for me to say because I wasn't in the case) both sides' patents were invalid. Of those twelve, juries found for the plaintiff six times and the defendant six times, for a win rate at trial of 50%.
However, postverdict two and a half of those verdicts for plaintiffs were later set aside by judges.
- In the first, the court found the patent invalid under Section 101, so the result was flipped from a plaintiff win to a defense win.
- In the second, the court set aside the verdict and two new trials - one on damages only (since the Federal Circuit had affirmed the infringement verdict) and a second on infringement and damages.
- In the third the court upheld the jury's infringement/not invalid verdict, but set a new trial on damages.
This drops the win rate to four for plaintiffs and seven for defendants, with a new trial coming on one case. As the two damages-only trials won't affect the numbers since the infringement/not invalid findings are already reflected in the statistics, that's a win rate of 36%.
Incidentally, 2015 was 50-50 on verdicts as well, dropping to 42% postverdict.