Patent Enforcement: A Review of the Literature

Abstract

Abstract. Without the confidence that patent rights can be enforced quickly and efficiently, when needed, the patent system will not stimulate innovation. For this reason, governments, academics, international institutions and the private sector have poured significant resources into gathering and analysing statistics on patent enforcement over the last two decades. This paper reviews these studies and finds that while infringement is relatively common, much enforcement occurs informally and less than 1-2% of patents incur litigation. New strategic uses of the enforcement system, especially by nonpracticing entities, are the major emerging enforcement issue, especially in the United States. While the old problem of litigation costs attracts the lion's share of empirical attention, it has produced remarkably few solutions to date.

Patent Litigation Strategy and Its Effects on the Firm

“…This strategy is frequent, owing due to firms’ desire to settle and the prospect of generating patent value rather than ‘see you in court’ (Weathrall and Webster ). Several studies seem consistent that most disputes are eventually settled rather than go further in court, although rates vary across data sources.…”

“…Disputants are aware of the genomic costs for them (Harhoff et al . ) and become strategic in patent litigation using patent portfolio as a defense or a weapon to extract revenues (Weatherall and Webster ). Companies may turn threat of litigation and operational hold‐up to a licensing deal.…”

“…They are praised for buying patents and helping independent inventors to commercialize inventions, but they are also criticized for holding on to these patents without development, and waiting for their prey to threaten and create licensing or extract compensation (Reitzig et al . ; Weatherall and Webster ). Byrd and Howard () report that top plaintiffs in 2013 were all NPFs (e.g.…”

“…He points out the richness of ‘patent right’ study, but the shortfall in studies on the outcomes, which is insightful for our study. Moreover, Weatherall and Webster () examine patent enforcement and find that infringement is common, but enforcement is informal. In this process, non‐practicing entities’ litigation (i.e.…”

Design for invention: annotation of functional geometry interaction for representing novel working principles

“…Therefore, it is understandable why at least 24% of UK companies experienced an intellectual property (IP) dispute over the past 5 years. Damages were agreed in 30% of cases and averaged £75-£115 k (Weatherall and Webster 2014), highlighting the need for greater designer awareness of potential patent infringement, which can be gained by looking at the prior art. The basis of a UK patent includes a description of the invention plus drawings and/or CAD model images and one or more claims (UK Intellectual Property Office 2016).…”