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Re: [ontolog-forum] [Fwd: Re: More on patents]

To: <edbark@xxxxxxxx>, "'[ontolog-forum] '" <ontolog-forum@xxxxxxxxxxxxxxxx>
From: "Rich Cooper" <rich@xxxxxxxxxxxxxxxxxxxxxx>
Date: Fri, 24 Sep 2010 14:16:58 -0700
Message-id: <20100924211708.7028F138E56@xxxxxxxxxxxxxxxxx>
Lovely paper, thanks, Ed!    (01)

Great math model, though overly simple in its assumptions.  Just having
looked it over quickly so far, I also find the projected value judgments to
be nicely theoretical, but likely unsupportable by the existing evidence.
But that may be my own bias in then end.  As I look deeper into it, that
view will likely change.      (02)

But with proper interpretation, the math model should be very useful in many
applications trading off investment and tactics with strategy.     (03)

So I'll give it a good read, which will take me a while to respond in depth.    (04)


Thanks,
-Rich    (05)

Sincerely,
Rich Cooper
EnglishLogicKernel.com
Rich AT EnglishLogicKernel DOT com
9 4 9 \ 5 2 5 - 5 7 1 2    (06)

-----Original Message-----
From: ontolog-forum-bounces@xxxxxxxxxxxxxxxx
[mailto:ontolog-forum-bounces@xxxxxxxxxxxxxxxx] On Behalf Of Ed Barkmeyer
Sent: Friday, September 24, 2010 9:31 AM
To: [ontolog-forum]
Subject: [ontolog-forum] [Fwd: Re: More on patents]    (07)

A colleague of mine contributed an additional reference to Rich Cooper's 
contribution.    (08)

-------- Original Message --------
Subject:        Re: [Fwd: [ontolog-forum] (Software) Patent litigation]
Date:   Thu, 23 Sep 2010 17:24:56 -0400
From:   Guillaume Radde <guillaume.radde@xxxxxxxx>
Reply-To:       msidtechtalk@xxxxxxxx <msidtechtalk@xxxxxxxx>
To:     Multiple recipients of list <msidtechtalk@xxxxxxxx>
References:     <4C9BBC97.8050205@xxxxxxxx>    (09)



Here is another interesting paper to reference when talking about 
software patents, from american economist and Nobel price laureate Eric 
Maskin:    (010)

http://www.researchoninnovation.org/patent.pdf    (011)

Guillaume    (012)


> -------- Original Message --------
> Subject:      [ontolog-forum] More on patents
> Date:         Thu, 23 Sep 2010 12:43:08 -0400
> From:         Rich Cooper<rich@xxxxxxxxxxxxxxxxxxxxxx>
> Reply-To:     [ontolog-forum]<ontolog-forum@xxxxxxxxxxxxxxxx>
> To:   '[ontolog-forum] '<ontolog-forum@xxxxxxxxxxxxxxxx>
>
>
>
> Hi Ontologizers,
>
>
>
> Since we have recently been discussion patents wrt ontologies, this
> statistical study of patent litigation might be of interest to many
> readers of this list.  Please see below for news item posted on a patent
> list I subscribe to.
>
>
>
> HTH,
>
> -Rich
>
>
>
> Sincerely,
>
> Rich Cooper
>
> EnglishLogicKernel.com
>
> Rich AT EnglishLogicKernel DOT com
>
> 9 4 9 \ 5 2 5 - 5 7 1 2
>
> ------------------------------------------------------------------------
>
> *Bombshell Study: Heavily Litigated NPE Patents Overwhelmingly Lose at
> Trial<http://feedblitz.com/r.asp?l=50410480&f=151161&u=191723&c=0>***
>
> To date, litigated patents were viewed as "strong" patents - the types
> that defendants were supposed to avoid taking to trial.  Moreover,
> litigated patents were seen as more valuable, since they managed to
> survive an all-out attack on validity by a presumably well-financed
> defendant.  Earlier studies (John  R.  Allison  /et  al/.,  /Valuable
>   Patents/,  92  Geo.  L.J.  435  (2004)) looked at litigated patents,
> and found that they differed from non-litigated patents in that they (1)
> include more claims, (2) cite more prior art, (3) are cited more often
> by later patents, and (4) come from larger "families" of
> patents/continuations.  Each of these factors are now used in
> conventional methodologies to determine the private value of patents.
>
> John Allison
>
<http://www.feedblitz.com/t2.asp?/151161/191723/0/http://papers.ssrn.com/sol
3/cf_dev/AbsByAuth.cfm?per_id=118168>,
> Mark Lemley
>
<http://www.feedblitz.com/t2.asp?/151161/191723/0/http://papers.ssrn.com/sol
3/cf_dev/AbsByAuth.cfm?per_id=32215>
> and Joshua Walker
>
<http://www.feedblitz.com/t2.asp?/151161/191723/0/http://papers.ssrn.com/sol
3/cf_dev/AbsByAuth.cfm?per_id=1533021>
> recently took on the task of identifying every patent that was litigated
> eight or more times between 2000 and February 2009, including cases
> still pending, and compared the outcomes of the cases against patents
> that were litigated only once.  In the course of their analysis, they
> found 106 such patents, which have been litigated in a total of 2,987
> different patent assertions in 478 different cases, often against
> multiple defendants.
>
> What did they find?  Serial patent litigants, and particularly NPE's
> (aka "trolls"), for a lack of a better phrase, "get creamed" when they
> go to trial:
>
> [T]o  our  great  surprise,  *we  find  that  the  willingness  of
>   these  patentees  to  litigate  their cases  to  judgment  is  a
>   mistake*.  Far  from  being  stronger  than  other  litigated  patents,
>   the most---litigated  patents  that  go  to  judgment  are  far  more
>   likely  to  be  held  invalid  or  not infringed.  The  differences
>   are  dramatic.  Once--litigated  patents  win  in  court  almost  50%
> of  the  time,  while  the  most--litigated  -  and  putatively  most
>   valuable  -  patents  win  in court  only  10.7%  of  the  time.
>
>
>
> The  results  are  equally  striking  for  patents  owned  by
>   non--practicing  entities  (NPEs), and for  software  patents.  NPEs
>   and  software  patentees  overwhelmingly  lose  their  cases, even with
>   patents  that  they  litigate  again  and  again.  Software  patentees
>   win  only  12.9%  of their  cases,  while  NPEs  win  only  9.2%.
>
>
>
> [S]tatistical  tests  bear  this  out.  We  compare  the  proportion  of
>   win  rates,  testing  the  null  hypothesis that  there  is  no
>   difference  between  the  most--litigated  and  once--litigated  patent
>   outcomes.  We test  the  proportions  in  several  ways,  both
>   including  and  excluding  settlements  in  the  denominator  of
> decided  cases,  and  both  including  and  excluding  default
>   judgments  as  plaintiff  wins.  *No  matter  which test  we  use,  the
>   differences  are  highly  statistically  significant  -  the
>   most--litigated  patentees  were more  likely  to  lose*.
>
>   Also,
>
>   Considering  only  the  patents  themselves,  the  proportions  of
>   initial  ownership  by  large  and  small  entities  are  almost  equal
>   in  the  most--  and  once-litigated  data  sets:  53.5%  of
>   most--litigated  patents  and  47.8%  of  once-litigated  patents  were
>   issued  to  large  entities.  The  picture  is  quite  different,
>   however,  when  one  looks  at  the  proportion  of  actual  assertions
>   in  litigation,  where  large  entities  account  for  a  surprisingly
>   small  percentage  of  the  most--litigated  patents.  Because  small
>   entities  are  disproportionately  represented  in  the  actual
>   litigation  of  most--litigated  patents . . . patents  that  were
>   initially  issued  to  large  entities  represent  only  22.4%  of  the
>   assertions  in  the  most--litigated  group,  compared  to  47.8%  of
>   the  once--litigated  group.
>
>
>
> [W]hen  the  cases  do  not  settle,  large  patent  plaintiffs  are
>   significantly  more  likely  than  small  ones  to  win,  without
>   regard  to  how  the  data  are  sliced.  When  we  combine  the  two
>   data  sets,  large  entity  plaintiffs  win  53.1%  of  the  cases
>   decided  on  the  merits  (55.9%  if  default  judgments  are
>   included),  while  small  entity  plaintiffs  win  only  12.3%  of
>   their  cases  (23.1%  if  default  judgments  are  included).
>
> Other interesting findings:
>
>
>
> - Just 16.7% of the assertions of the most-litigated patents were made
> by product-producing companies.
>
>
>
> - Software patents constituted 20.8% of the once-litigated patents but
> 74.1% of the most-litigated patents.
>
>
>
> - Owners of non-software patents are far more likely to win their cases
> than are software patent owners (37.1% versus 12.9% overall)
>
>
>
> - The number of defendants per case is a negative predictor of
> settlement - the more defendants there are per case, the less likely the
> case is to settle.  Also, the more defendants there are per case the
> more likely those defendants are to win.
>
>
>
> The study concludes:
>
> We  designed  this  study  to  explore  the  effects  of  repeat  play
>   on  litigation  behavior,  contributing  to  a  literature  on  the
>   economics  of  civil  procedure  as  well  as  the  substance  of
>   patent  law.  But  what  we  found  was  dramatic  and  unexpected:
>   The  patents  and  patentees  that  occupy  the  most  time  and
>   attention  in  court  and  in  public  policy  debates  -  the  very
>   patents  that  economists  consider  the  most  valuable  -  are
>   astonishingly  weak.  Non--practicing  entities  and  software
>   patentees  almost  never  win  their  cases.  That  may  be  a  good
>   thing,  if  you  believe  that  most  software  patents  are  bad  or
>   that  NPEs  are  bad  for  society.  But  it  certainly  means  that
>   the  patent  system  is  wasting  more  of  its  time  than  expected
>   dealing  with  weak  patents.  And  it  also  suggests  that  both  our
>   measures  of  patent  value  and  our  theories  of  litigation
>   behavior  need  some  serious  reconsideration.
>
>    Read/download "Patent Quality and Settlement among Repeat Patent
> Litigants" (link
>
<http://www.feedblitz.com/t2.asp?/151161/191723/0/http://papers.ssrn.com/sol
3/papers.cfm?abstract_id=1677785>)
>
>
>
>
>        (013)


-- 
Guillaume Radde
Software and Systems Division
National Institute of Standards and Technology
guillaume.radde@xxxxxxxx
(301) 975-6145    (014)




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