But one of the reasons I joked about trolls being so 2012 is that this is where much of the detailed data comes from, and this is when the key articles that are cited by many were published. Indeed, I've published two follow-on articles to Patent Troll Myths, each of which contains more and better data (and thus took longer complete and published later), but which gets only a tiny fraction of the citation love of the original article.
And so it is no surprise that the latest in a series of articles by Chris Cotropia (Richmond), Jay Kesan (Illinois), and David Schwartz (Northwestern) was released with little fanfare. The article, called Heterogeneity among Patent Plaintiffs: An Empirical Analysis of Patent Case Progression, Settlement, and Adjudication is forthcoming in Journal of Empirical Legal Studies, but a draft is on SSRN. Here is the abstract:
This article empirically studies current claims that patent assertion entities (PAEs), sometimes referred to as ‘patent trolls’ or non-practicing entities (NPEs), behave badly in litigation by bringing frivolous patent infringement suits and seeking nuisance fee settlements. The study explores these claims by examining the relationship between the type of patentee-plaintiffs and litigation outcomes (e.g., settlement, grant of summary judgment, trial, and procedural dispositions), while taking into account, among other factors, the technology of the patents being asserted and the identity of the lawyers and judges. The study finds significant heterogeneity among different patent holder entity types. Individual inventors, failed operating companies, patent holding companies, and large patent aggregators each have distinct litigation strategies largely consistent with their economic posture and incentives. These PAEs appear to litigate differently from each other and from operating companies. Accordingly, to the extent any patent policy reform targets specific patent plaintiff types, such reforms should go beyond the practicing entity versus non-practicing entity distinction and understand how the proposed legislation would impact more granular and meaningful categories of patent owners.In my article A Generation of Patent Litigation, I presented data about how often cases settle, and how that skews our view of how long they last, and who wins. This article extends the authors' earlier work on categorizing just who is filing NPE suits (in 2010 in this article), and asks when they settle for each and every defendant. This is hard work. In most of today's cases, each defendant is sued separately, so when the defendant settles, the case is over. Analytics companies track this all the time...now.
But in 2010, a patentee could sue 100 defendants at once, and you could not tell how long each remained in the case without tracking each defendant. If you only track the end of the case, you capture the one defendant who fought it out, but you miss all the defendants who exited early. The other added value of this series of papers is tracking all plaintiffs by type, rather than one big "NPE" status. I do this in The Layered Patent System, but I only had a subset of cases over a longer period of time, They have captured all of the cases in a single year. I'll discuss what this all means after the jump.