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Q: Patent Litigation ( Answered,   0 Comments )
Subject: Patent Litigation
Category: Business and Money
Asked by: irams-ga
List Price: $50.00
Posted: 29 Jun 2005 12:09 PDT
Expires: 29 Jul 2005 12:09 PDT
Question ID: 538410
What percentage of motions for preliminary injunction are granted in
patent infringement cases in the United States?
Subject: Re: Patent Litigation
Answered By: hagan-ga on 29 Jun 2005 13:39 PDT
Hello, irams-ga.  What an interesting question!

A study of exactly this question was reported in the Franklin Pierce
Law Journal of Law and Technology

The answer has varied greatly over time.  Prior to 1920, preliminary
injunctions in patent litigation were routinely granted. (Id. at 216.)
However, in the early part of the 20th Century, courts began to
require that a patentee prove his claim "beyond question," and there
was little or no presumption of validity to a patent.  (Id. at 218.) 
Accordingly, by 1978, a survey of patent litigation discovered a
success rate for preliminary injunctions of only 32% nationwide, and
in some circuits considerably less than that.  (Id. at 219, citing
Robert C. Dorr & Bradford J. Duft, Patent Preliminary Injunctive
Relief, 60 J. Pat. Off. Soc'y 597, 607-10 (1978).)

The establishment of the Court of Appeals for the Federal Circuit, and
the assignment of all patent appeals to that court, has resulted in a
more uniform, and eventually, more liberal standard for the granting
of such preliminary injunctions.  The Franklin Pierce Law Journal
study reviewed patent cases from 1982 through 1993, and found that
approximately 61% of the applications for preliminary injunction were
granted.  From the article:

"Specifically, between October 1, 1982 and December 31, 1993, district courts
granted preliminary injunctions in slightly over sixty-one percent of
the cases involving patent infringement."  (Id. at 231.)

Moreover, the rate of AFFIRMANCE of such orders has also gone up.  Now
that the district courts are applying a uniform standard, and all
"singing from the same hymnal," so to speak, with the establishment of
the Federal Circuit, the rate at which grants of preliminary
injunctive relief are affirmed has gone up to 58%, from the previous
rate (before the Circuit was established) of 44%. (Id. at 232.) 
However, careful attention should be paid to the data from 1991
onwards -- the Federal Circuit began rejecting more of these orders,
with instructions to the trial courts to substantiate their findings. 
From the article:
"Along with an increased emphasis on reasoned analysis, however, the
Federal Circuit's recent tendency to affirm less grants of preliminary
injunctions may also reflect an effort on the part of the court to
reestablish that, despite the tone of many of its early opinions,
preliminary injunctions remain an extraordinary form of relief and
should not be granted freely without adequate cause."  (Id. at 233,
citing _Nutrition 21 v. United States_, 930 F.2d 867, 18 U.S.P.Q.2d
1347 (Fed. Cir. 1991).

In contrast to the 58% affirmance rate for GRANTS of preliminary
injunctions, DENIALS of preliminary injunctions are affirmed 75% of
the time.

In addition to the Franklin Pierce article, Perry J. Saidman found
similar results (70% granted) in his survey of design patents.  Perry
J. Saidman, Design Patents-The Whipping Boy Bites Back, 73 J. Pat. &
Trademark Off. Soc'y 859, 866 (1991).

Finally, it is important to note that the Franklin Pierce article had
a nationwide scope, which will tend to blur important distinctions
between district courts.  The table at is a graphic reminder
of the difference that venue makes.  It shows such variances as the
Southern District of California, denying 3 out of 4 such motions, and
the District of Massachusetts, denying 8 out of 9, contrasted with the
Northern District of Texas, and the District of Oregon, both granting
2 out of 2.  A review of the table seems to indicate that the more
patent applications a district sees, the more likely it is to rule
against the patentee.

I hope you found this information useful.  Please let me know if I can
provide any further assistance.
There are no comments at this time.

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