Do the courts love IP? More from the UK ... and China

The IPKat recently posted an item which raised the question whether the patents courts in the UK are hostile to patents. He has since received this comment from fellow blogger Peter Groves:
"It struck me that even if they represent only the tip of the iceberg of patent disputes, those cases that come to trial are a significant sample by virtue of the fact that they do come to trial. Perhaps I'm wrong. However, I proceeded to search Bailii for infringement or validity cases dated 2008 and assembled the attached table: which looks to me as if things are fairly evenly balanced, although - of course! - the cases aren't as clear-cut simply valid or not, infringed or not".
Many thanks, Peter, for taking the trouble to supply this.

The Kat has received a new paper, "Intellectual Property Rights Protection in China: Trends in Litigation and Economic Damages", penned by economic consultancy NERA's Senior Consultant Kristina Sepetys and its Senior Vice President Dr Alan Cox. The paper describes the changing role of intellectual property enforcement in an evolving economy such as China’s, as well as the judicial and administrative procedures available for IP enforcement. Drawing upon their own dataset, the authors also examine trends in Chinese damages awards. Unsurprisingly, in the IPKat's opinion -- based on anecdotal rather than systematic data -- authors conclude that IP damages in China are generally too low to compensate owners for their losses or to have any meaningful deterrent effect. But the news is improving: significant damages awards are now being awarded and their frequency is on the rise. A copy of this paper, in English or Chinese, may be obtained from its authors.
Do the courts love IP? More from the UK ... and China Do the courts love IP? More from the UK ... and China Reviewed by Jeremy on Thursday, January 29, 2009 Rating: 5


Anonymous said...

Thanks for the table. You say it looks fairly even, and I agree. But surely, given that the applications have gone through a (rigorous) examination process, a lot more should be held to be valid than invalid?

Anonymous said...

The selection bias is huge. If a patent is clearly invalid, why would it be asserted (at least all the way to trial). Generally, if the patent is clearly valid, why would the defendant spend them money to fight to trial, rather than negotiate a settlement.

Consequently, most cases which arive at trial are the 'close calls' where reasonable people can disagree as to whether the patent is valid or invalid.

You can get similar data from looking at appeals in various jurisdictions. Where appeals are onerous, they will be sucesfull most of the time, as they are only undertaken in the clearest cases. Where the costs are modest, they will be sucesful about half the time, as they will be taken whenever there is a good argument. When the appeal costs are minimal, the appeal will be sucesful rarely, as everyone appeals irregardless of the merits.

The % overturned on appeal figures then often have little to do with the quality of the Court or tribunal being reversed, and more with the procedural and cost mechanisms behind the appeal process. (Individual judge/panel quality would vary though, so if 100% of judge X's decisions are appealed, but the overall appeal rate is 50%, it suggests judge X is doing something very wrong.)

ARA said...

What a snapshot! Thank you, Mr. Groves.

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