Article

Our Divided Patent System

John R. Allison

Mary John and Ralph Spence Centennial Professor of Business Administration, McCombs School of Business, The University of Texas at Austin

Mark A. Lemley

William H. Neukom Professor of Law, Stanford Law School; partner, Durie Tangri LLP

David L. Schwartz

Professor of Law and Co-director, Center for Empirical Studies of Intellectual Property, IIT Chicago-Kent College of Law

In this comprehensive new study, we evaluate all substantive decisions rendered by any court in every patent case filed in the years 2008 and 2009— decisions made between 2009 and 2013. We assess the outcome of litigation by technology and industry. We relate the outcomes of those cases to a host of variables, including variables related to the parties, the patents, and the courts in which those cases were litigated.

We find dramatic differences in the outcomes of patent litigation by both technology and industry. For example, owners of patents in the pharmaceutical industry fare much better in dispositive litigation rulings than do owners of patents in the computer and electronics industry, and chemistry patents have much greater success in litigation than their software or biotechnology counterparts. Our results provide an important window into both patent litigation and industry-specific battles over patent reform. These results suggest that the traditional narrative of industry-specific patent disputes, which pits the information technology industries against the life sciences, is incomplete.

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