Global Patent Litigation Strategies: Navigating the Complex Web of International IP Disputes

Summary of Key Takeaways:
  • Intellectual Property, Patent Litigation
  • 2024-10-11 16:00:20.436651

Global Patent Litigation Strategies: Navigating the Complex Web of International IP Disputes

In today's interconnected world, patent disputes are no longer confined to a single jurisdiction. As innovation transcends borders, so too must the strategies employed to protect intellectual property rights. At our firm, we specialize in guiding clients through the intricate maze of global patent litigation, helping them leverage the unique advantages of various jurisdictions while mitigating risks. This comprehensive guide delves into the key considerations, challenges, and strategies for pursuing a global approach to patent litigation.

The Rise of Global Patent Litigation

The trend towards global patent litigation has been steadily increasing over the past decade. Both US and non-US based companies have adopted comprehensive worldwide strategies in high-stakes patent disputes. These "bet-the-company" clashes are no longer limited to US district courts or the International Trade Commission (ITC). Instead, we're seeing simultaneous actions brought in forums across Europe and Asia.

This shift is perhaps best exemplified by the infamous "smartphone patent wars," which saw tech giants like Apple and Samsung engaging in legal battles across multiple continents. However, these global disputes are not limited to practicing entities. We've also witnessed non-practicing entities (NPEs) like Unwired Planet pursuing multi-jurisdictional strategies to assert their patent rights.

Why Go Global?

There are several compelling reasons for patent holders to pursue a global litigation strategy:

  1. Diversification of Risk: Relying solely on one jurisdiction, even a traditionally favored one like the US, can be risky. A global approach spreads this risk across multiple forums.

  2. Changing US Landscape: Recent developments in US patent law have made it more challenging to obtain certain remedies, particularly injunctions for standard-essential patents (SEPs) and non-practicing entities.

  3. Forum Shopping Limitations: The US Supreme Court's decision in TC Heartland LLC v. Kraft Foods Group Brands LLC has restricted the ability to choose favorable venues within the US, making international forums more attractive.

  4. Multiple Bites at the Apple: A global strategy allows patent holders to present their case multiple times, targeting the opposing party's business on several fronts. This expands the potential for damages and the geographic reach of remedies.

  5. Strategic Advantages: Early victories in one jurisdiction can be leveraged to pressure opponents into favorable settlements globally. Additionally, the sheer complexity and cost of defending against multiple actions can increase pressure on the opposing party.

Key Strategic Considerations

Before embarking on a global patent litigation campaign, it's crucial to carefully consider various factors that will shape your strategy. Let's explore these in detail:

1. Time to Resolution

The speed at which different jurisdictions resolve patent disputes can significantly impact your strategy. Generally, there's a correlation between the speed to trial and both settlement likelihood and patentee success rates.

US Timelines

In the United States, certain venues are known for their "rocket dockets":

  • The US District Court for the Eastern District of Virginia typically resolves cases in under a year.
  • The International Trade Commission (ITC) aims to conclude investigations within 16 months of institution.
  • Inter partes reviews (IPRs) at the Patent Trial and Appeal Board (PTAB) must be decided within 12 to 18 months.

However, it's worth noting that some traditionally fast US courts have become more congested, leading to longer timelines and increased transfers out of these jurisdictions.

Non-US Timelines

Outside the US, timelines can vary significantly:

  • German infringement courts move quickly and are reluctant to stay proceedings based on validity challenges.
  • UK courts can resolve both infringement and validity issues together in less than a year for expedited matters.
  • Japanese courts typically take 12-16 months to reach a first instance decision.

2. Litigation Goals

Your specific objectives will inevitably influence your choice of forums. Are you seeking to:

  • Maximize licensing fees?
  • Force a competitor to exit a market?
  • Compel a design-around of your patents?

Each goal may require a different jurisdictional strategy. For instance, if your primary aim is to secure a global settlement, obtaining quick injunctive relief in key markets may be the most effective approach.

3. Countersuit Exposure

It's crucial to anticipate potential countersuits from your adversary. If you lack the resources or risk tolerance to defend against such actions, you may need to reconsider your global strategy.

A common defensive tactic is for the alleged infringer to assert its own patents against the patentee's products. This was seen in the Sony/LG dispute, where LG countersued against Sony's PS3 gaming console in response to Sony's initial suit over mobile patents.

4. Budgetary Concerns

Global patent litigation can be extremely costly. While US litigation typically runs into millions of dollars, expenses in other jurisdictions can vary widely:

  • German litigation is relatively inexpensive, with court and legal fees often totaling less than €200,000 for a €5 million dispute.
  • UK litigation allows for discovery and expert witnesses, which can drive up costs.
  • Japanese court fees are set by a standard table and are generally predictable.

It's important to note that in many non-US jurisdictions, the losing party often pays the prevailing party's costs and sometimes attorneys' fees. This "loser pays" system can significantly impact your risk calculus.

5. Patent Portfolio Selection

The strength and nature of your patent portfolio in each jurisdiction will play a crucial role in your strategy. Consider:

  • Potential non-infringement arguments
  • Validity challenges and their likelihood of success
  • Available defenses in each jurisdiction
  • Potential remedies

When selecting patents for assertion, consider focusing on:

  1. Highly Visible Features: Patents covering common, highly visible, and important product features are likely to have the greatest impact. They're also often easier to prove infringement for than hidden software or technology features.

  2. Standard-Essential Patents (SEPs): Asserting SEPs can create significant exposure for alleged infringers, as these patents are typically widely adopted across industries. However, this strategy comes with its own set of challenges, including potential antitrust and competition law issues.

6. Home-Court Advantage

There can be strategic benefits to litigating in your home jurisdiction or that of your opponent. For instance:

  • Litigating in your home court may provide an emotional advantage with the trier of fact.
  • Suing an opponent in their home jurisdiction can provide strong leverage if their exposure is high there and may attract significant media attention.

7. Coordinating Strategy

Embarking on a global patent litigation campaign requires careful planning and coordination among multiple law firms in various jurisdictions. While consistency is ideal, it's important to note that a loss in one jurisdiction doesn't necessarily lead to losses elsewhere due to differences in patent laws, legal standards, and available defenses.

Impact of Procedural Differences

The procedural differences between forums can have a significant impact on your litigation strategy and outcomes. Let's explore some key areas:

Judge vs. Jury as Fact Finder

In the US, both parties are entitled to a jury trial in district court patent cases. Juries are often favored by plaintiffs because they:

  • Are generally less sophisticated and more unpredictable
  • May be more easily swayed by emotional arguments

However, cases before the ITC and PTAB are heard by specialized judges, with no jury option.

Outside the US, patent infringement cases are typically heard by judges, not juries. This can impact how you present your case and the types of arguments that may be most effective.

Availability of Preliminary Relief

The ability to obtain quick, preliminary relief can be a game-changer in patent disputes. It can help preserve market share, keep costs down, and potentially lead to an early settlement.

In the US, preliminary injunctions are available but can be challenging to obtain. The patentee must show:

  1. A likelihood of success on the merits
  2. Irreparable harm in the absence of preliminary relief
  3. That the balance of equities tips in its favor
  4. That an injunction is in the public interest

In Europe, preliminary injunctions are more readily available in some jurisdictions. For example:

  • German courts are known for granting preliminary injunctions relatively quickly, often within a few months.
  • UK courts may grant preliminary injunctions, but they typically require the applicant to provide a cross-undertaking in damages.

Separate or Consolidated Infringement and Validity Trials

The structure of patent proceedings can vary significantly between jurisdictions:

  • In the US, infringement and validity are typically considered together in district court and ITC proceedings.
  • In Germany, infringement and validity are bifurcated, with infringement heard in regional courts and validity determined by the Federal Patent Court in Munich.
  • UK courts generally hear infringement and validity together, which can lead to longer but more comprehensive proceedings.

Understanding these differences is crucial when planning your global strategy. For instance, the German bifurcated system can be advantageous for patentees, as infringement proceedings often conclude before validity is determined, potentially allowing for injunctive relief even if the patent is later found invalid.

Available Remedies

The remedies available in different jurisdictions can significantly impact your strategy:

United States

  • US courts have historically granted high damage awards, including some exceeding $1 billion.
  • Treble damages are available for willful infringement.
  • Injunctive relief has become more challenging to obtain following eBay Inc. v. MercExchange, L.L.C., particularly for SEPs and NPEs.
  • The ITC can issue exclusion orders barring importation of infringing products.

Europe

  • Damage awards tend to be smaller than in the US.
  • Injunctive relief is more readily available in many European jurisdictions.
  • Some jurisdictions, like the Netherlands, have historically issued cross-border injunctions, though this practice is controversial.

Asia

  • Japan and China have seen increasing damage awards in recent years, though still generally lower than US awards.
  • Injunctive relief is available but may be more challenging to obtain in some jurisdictions.

Substantive Differences in Patent Laws

When pursuing a global patent litigation strategy, it's crucial to understand the substantive differences in patent laws across jurisdictions. These differences can significantly impact the validity, enforceability, and scope of your patent rights.

Prior Art Rules

While many countries have moved towards harmonization of patent laws, important differences remain:

  • The US moved to a first-inventor-to-file system for applications filed after March 16, 2013, bringing it closer to the first-to-file systems used in most other countries.
  • However, the legal standards for granting a patent still differ. For example, the US uses "utility" and "non-obviousness" standards, while Europe uses "novelty" and "inventive step."
  • These differences affect the scope of prior art that can be used to challenge a patent's validity.

Types of Patent Protection

The types of patent protection available can vary by jurisdiction:

  • Design Patents: Available in many jurisdictions for the ornamental design of functional items. In the US, these offer 15 years of protection from the grant date.
  • Utility Models: Available in many European and Asian countries, but not in the US or UK. These are often unexamined rights that can be obtained quickly but may be more vulnerable to validity challenges.
  • Software and Business Method Patents: The eligibility of these inventions for patent protection varies widely. The US has traditionally been more permissive, but recent case law has narrowed the scope of eligible subject matter.

Claim Interpretation

The way patent claims are interpreted can also vary:

  • US courts generally give claims their "ordinary and customary meaning" as understood by a person of ordinary skill in the art at the time of invention.
  • German courts often interpret claims more broadly, focusing on the "inventive concept" rather than the literal wording.
  • UK courts traditionally took a more literal approach to claim construction, though recent cases have moved towards a more purposive interpretation.

Understanding these differences is crucial when asserting the same or similar patents in multiple jurisdictions.

Antitrust and Competition Law Considerations

When pursuing a global patent litigation strategy, particularly one involving SEPs, it's essential to be aware of potential antitrust and competition law defenses that may be raised in various jurisdictions.

United States

In the US, accused infringers may raise antitrust defenses, particularly in cases involving SEPs. However, recent case law has limited the applicability of antitrust law to FRAND disputes:

  • In FTC v. Qualcomm Inc., the Ninth Circuit held that the remedy for breaching FRAND obligations lies in contract and patent law, not antitrust law.
  • However, the possibility of government investigations remains. Both the Federal Trade Commission (FTC) and Department of Justice (DOJ) have the authority to investigate patent enforcement and licensing practices affecting industry standards.

European Union

The EU has taken a more active approach to regulating SEP licensing practices:

  • The Court of Justice of the European Union (CJEU) in Huawei v. ZTE laid out specific steps that SEP holders must take before seeking an injunction, including providing notice, expressing willingness to license on FRAND terms, and making a specific written offer.
  • The European Commission has concluded that companies with FRAND obligations may seek injunctions, but only after good faith negotiations have failed.

Japan

The Japan Fair Trade Commission has also been active in this area, finding certain non-assertion provisions in Microsoft's licensing agreements to be unenforceable.

When asserting SEPs globally, it's crucial to carefully consider these varying approaches to avoid running afoul of competition laws.

Case Studies in Global Patent Litigation

To illustrate the complexities and strategies involved in global patent litigation, let's examine a few high-profile cases:

Apple v. Samsung

This epic smartphone patent battle, initiated in 2011, spanned multiple continents and involved dozens of lawsuits.

Key Aspects: - Apple asserted both utility and design patents. - Litigation occurred in the US, Germany, Japan, South Korea, and other jurisdictions. - The dispute highlighted the interplay between different legal systems, with decisions in one jurisdiction sometimes impacting others. - The case resulted in a $539 million jury verdict for Apple in the US, later settled for an undisclosed amount.

Lessons Learned: - The importance of a diverse patent portfolio, including both utility and design patents. - The potential for conflicting decisions across jurisdictions, as seen with the contrasting rulings on the Galaxy Tab 10.1 in Germany and the UK. - The value of home court advantage, with Apple generally faring better in US courts.

Unwired Planet v. Huawei

This case, involving SEPs related to 2G, 3G, and 4G cellular standards, highlighted the growing importance of FRAND licensing disputes.

Key Aspects: - Litigation occurred primarily in the UK, with related proceedings in China and Germany. - The UK Supreme Court affirmed the lower courts' jurisdiction to set global FRAND rates. - The case established the UK as a potential venue for resolving global FRAND disputes.

Lessons Learned: - The potential for a single jurisdiction to effectively set global licensing rates for SEPs. - The importance of considering FRAND obligations when asserting SEPs. - The growing role of non-practicing entities in global patent litigation.

Qualcomm v. Apple

This multi-year, multi-jurisdiction battle involved numerous patents related to smartphone technology.

Key Aspects: - Litigation occurred in the US, Germany, China, and other jurisdictions. - The dispute involved both SEPs and non-SEPs. - In Germany, Qualcomm obtained an injunction against certain iPhone models, requiring a substantial bond. - The case ultimately settled, with Apple agreeing to pay Qualcomm and enter into a six-year license agreement.

Lessons Learned: - The potential leverage gained from obtaining injunctions in key markets. - The complexities of litigating both SEPs and non-SEPs simultaneously. - The impact of regulatory investigations (e.g., FTC v. Qualcomm) on private patent disputes.

Emerging Trends and Future Considerations

As we look to the future of global patent litigation, several trends and developments are worth monitoring:

1. The Unified Patent Court (UPC)

The long-awaited Unified Patent Court in Europe is set to become operational in the near future. This will create a new forum for patent litigation covering multiple EU member states, potentially transforming the European patent landscape.

Key Points: - The UPC will have jurisdiction over both infringement and validity of European patents. - It will offer the possibility of pan-European injunctions. - Opt-out provisions will allow patent holders to keep their existing European patents out of the UPC system during a transitional period.

Strategic Considerations: - Whether to opt existing European patents into or out of the UPC system. - How the UPC will interact with national courts and the European Patent Office. - The potential for forum shopping within the UPC system.

2. Artificial Intelligence and Machine Learning

As AI and ML technologies become more prevalent, new challenges in patent litigation are emerging:

Key Points: - Questions about inventorship for AI-generated inventions. - Challenges in proving infringement of AI/ML patents, particularly when algorithms are constantly evolving. - Potential new defenses based on the unpredictability of AI outputs.

Strategic Considerations: - How to draft patent claims that effectively cover AI/ML innovations. - The need for new approaches to discovery and evidence gathering in AI/ML patent cases. - Potential regulatory interventions in AI/ML patent disputes.

3. Standard Essential Patents in the Internet of Things (IoT) Era

As more devices become connected, SEPs are likely to become increasingly important in sectors beyond traditional telecommunications.

Key Points: - Expansion of SEP disputes into automotive, home appliance, and industrial sectors. - Potential for new SSOs and standards in emerging technologies. - Increased scrutiny of FRAND licensing practices across diverse industries.

Strategic Considerations: - The need for companies in traditionally non-tech sectors to develop SEP strategies. - Potential for new approaches to FRAND licensing to accommodate diverse industry participants. - The role of patent pools and other collective licensing mechanisms in the IoT era.

4. Increasing Role of China in Global Patent Litigation

China has been rapidly developing its patent system and is becoming an increasingly important forum for global patent disputes.

Key Points: - Improvements in China's IP court system, including the establishment of specialized IP courts. - Increasing damage awards in Chinese patent cases. - China's growing importance as both a market and a source of innovation.

Strategic Considerations: - The need to develop China-specific patent strategies. - Potential for using Chinese patent litigation as leverage in global disputes. - Navigating the interplay between Chinese courts and other global forums.

5. Climate Change and Green Technology Patents

As the world grapples with climate change, patents related to green technologies are likely to become increasingly important and contentious.

Key Points: - Potential for government interventions to ensure access to critical green technologies. - Increased focus on compulsory licensing for environmental technologies. - Growing importance of standards and SEPs in green technology sectors.

Strategic Considerations: - Balancing patent protection with the need for widespread adoption of green technologies. - Navigating different national approaches to green technology patents. - Potential for new types of patent pools or licensing platforms for environmental technologies.

Practical Strategies for Global Patent Litigation

Given the complexities of global patent litigation, it's crucial to have a well-thought-out strategy. Here are some key approaches to consider:

1. Conduct a Comprehensive Patent Portfolio Analysis

Before embarking on a global litigation campaign, thoroughly assess your patent portfolio:

  • Identify key patents that cover important features of the target products.
  • Evaluate the strength and enforceability of these patents in different jurisdictions.
  • Consider the remaining life of the patents and their geographical coverage.
  • Assess the potential for successful validity challenges in each jurisdiction.

2. Develop a Multi-Jurisdictional Strategy

Rather than viewing each potential lawsuit in isolation, develop an overarching global strategy:

  • Prioritize jurisdictions based on market importance, likelihood of success, and potential remedies.
  • Consider the interplay between different forums – for example, how a quick win in Germany might impact negotiations globally.
  • Plan for potential countermoves by the opponent, including defensive actions in other jurisdictions.

3. Leverage Procedural Differences

Understanding the procedural nuances of different jurisdictions can provide strategic advantages:

  • Use fast-track jurisdictions like Germany for quick injunctions.
  • Consider bifurcated systems where infringement can be determined before validity.
  • Utilize specialized forums like the US ITC for import bans.

4. Coordinate Your Global Team

Effective coordination is crucial when litigating across multiple jurisdictions:

  • Establish a core strategy team to oversee the global campaign.
  • Ensure consistent positioning on key issues like claim construction across jurisdictions.
  • Develop a system for rapid information sharing between teams in different countries.

5. Manage Costs Effectively

Global patent litigation can be extremely expensive. Manage costs by:

  • Prioritizing jurisdictions and focusing resources on key markets.
  • Utilizing cost-effective jurisdictions for initial actions.
  • Considering alternative fee arrangements with law firms.
  • Using technology and project management tools to streamline processes.

6. Prepare for Counterclaims and Validity Challenges

Anticipate and prepare for the opponent's likely responses:

  • Conduct thorough prior art searches to assess validity risks.
  • Evaluate the opponent's patent portfolio for potential counterclaims.
  • Develop strategies for addressing FRAND and antitrust defenses, particularly for SEPs.

7. Consider Alternative Dispute Resolution (ADR)

While preparing for litigation, also consider ADR options:

  • Mediation can be a cost-effective way to resolve global disputes.
  • Arbitration can provide a neutral forum and potentially more predictable outcomes.
  • Some jurisdictions, like Japan, have specialized ADR processes for patent disputes.

8. Plan Your Endgame

From the outset, have a clear vision of your desired outcome:

  • Is the goal a global settlement, ongoing royalties, or market exclusion?
  • Develop settlement strategies for different stages of the litigation.
  • Consider how different outcomes in various jurisdictions might impact your overall goals.

Ethical Considerations in Global Patent Litigation

As legal professionals engaged in global patent litigation, it's crucial to navigate the ethical complexities that arise when operating across multiple jurisdictions. Here are some key ethical considerations:

1. Conflicting Ethical Rules

Different jurisdictions may have varying ethical standards for lawyers. It's essential to:

  • Familiarize yourself with the ethical rules in each jurisdiction where you're operating.
  • Develop protocols for addressing conflicts between different ethical standards.
  • When in doubt, generally adhere to the stricter standard to ensure compliance.

2. Privilege and Confidentiality

The scope of attorney-client privilege and work product protection can vary significantly between jurisdictions:

  • Be aware that communications protected in one jurisdiction may not be in another.
  • Develop clear protocols for marking and handling privileged communications.
  • Consider using separate teams for different jurisdictions to minimize cross-border privilege issues.

3. Disclosure Obligations

Different jurisdictions have varying requirements for disclosure of information:

  • Understand the disclosure obligations in each relevant jurisdiction.
  • Develop systems to track what information has been disclosed where.
  • Be prepared to explain differences in disclosure to courts and opponents.

4. Conflicts of Interest

Global litigation can create complex conflict of interest scenarios:

  • Conduct thorough conflict checks that consider all relevant jurisdictions.
  • Be aware of how conflicts are defined and handled in different legal systems.
  • Develop clear protocols for addressing potential conflicts that arise during litigation.

5. Unauthorized Practice of Law

When coordinating a global litigation strategy, be careful not to engage in unauthorized practice of law:

  • Ensure that all legal work in each jurisdiction is performed by properly licensed attorneys.
  • Be cautious about giving advice on foreign law unless you're qualified to do so.
  • Use local counsel effectively while maintaining overall strategic coordination.

6. Ethical Use of Technology

As technology plays an increasing role in global litigation, consider the ethical implications:

  • Ensure compliance with data protection laws when transferring information across borders.
  • Be aware of the ethical implications of using AI tools in litigation, particularly for tasks like document review.
  • Develop protocols for secure communication and data storage across your global team.

Conclusion: The Future of Global Patent Litigation

As we've explored throughout this article, global patent litigation is a complex and evolving field that requires a sophisticated, multi-faceted approach. The interplay of different legal systems, procedural rules, and substantive laws creates both challenges and opportunities for patent holders and alleged infringers alike.

Looking ahead, several factors are likely to shape the future of global patent litigation:

  1. Technological Advancements: As technology continues to advance rapidly, particularly in areas like AI, IoT, and biotechnology, patent litigation will need to adapt to address new and complex technical issues.

  2. Harmonization Efforts: While significant differences remain between patent systems worldwide, ongoing efforts towards harmonization may gradually reduce some of these disparities.

  3. Geopolitical Factors: Trade tensions and technological competition between nations may increasingly influence patent disputes and enforcement strategies.

  4. Environmental Concerns: As the world grapples with climate change, patents related to green technologies may become a focal point of global disputes.

  5. Evolving Business Models: The rise of the digital economy and new business models may challenge traditional notions of patent infringement and remedies.

For legal practitioners in this field, staying abreast of these developments and continually refining global litigation strategies will be crucial. The most successful approaches will likely be those that can nimbly adapt to changing circumstances while maintaining a coherent overall strategy.

Ultimately, while global patent litigation presents significant challenges, it also offers unparalleled opportunities to protect and monetize innovations on a worldwide scale. By carefully considering the factors discussed in this article and developing a well-coordinated global strategy, patent holders can effectively navigate this complex landscape and achieve their business objectives.

As we move forward, the key to success in global patent litigation will be a combination of deep legal expertise, strategic thinking, and a truly international perspective. The future promises to be both challenging and exciting for those at the forefront of this dynamic field.

Typical Trial Timelines and Patentee Win Rates

| Jurisdiction | Infringement Trial Duration | Invalidity Trial Duration | Patentee Win Rate | |----------------------------------------|-----------------------------|---------------------------|-------------------| | US District Courts: | | | | | Eastern District of Virginia | 1.0 years | Same as infringement trial | 22% | | Western District of Wisconsin | 1.4 years | Same as infringement trial | 31% | | Middle District of Florida | 1.9 years | Same as infringement trial | 49% | | Southern District of California | 1.9 years | Same as infringement trial | 32% | | Southern District of Florida | 2.0 years | Same as infringement trial | 37% | | District of Delaware | 2.1 years | Same as infringement trial | 41% | | Southern District of Texas | 2.1 years | Same as infringement trial | 17% | | Eastern District of Texas | 2.2 years | Same as infringement trial | 54% | | Central District of California | 2.3 years | Same as infringement trial | 28% | | Southern District of New York | 2.4 years | Same as infringement trial | 25% | | Northern District of Texas | 2.5 years | Same as infringement trial | 51% | | District of New Jersey | 2.7 years | Same as infringement trial | 48% | | Northern District of California | 2.7 years | Same as infringement trial | 28% | | District of Massachusetts | 3.5 years | Same as infringement trial | 30% | | Northern District of Illinois | 4.0 years | Same as infringement trial | 16% | | US International Trade Commission | 9 to 10 months to merits hearing; 16-22 months to final merits determination | Same as infringement trial | Roughly 50-70% | | UK | 12 months (may be expedited) | Same as infringement trial | 22% | | Germany | 6 to 18 months | 2 years | 26% overall (43.5% patentee win rate on validity challenges, 60% on infringement) | | Japan | 13.5 months | Same as infringement trial | 20% |

Additional Improvements:

  • US International Trade Commission (USITC): The win rate is provided as a range (50-70%) because it varies from year to year. More specific numbers can be obtained from USITC records.
  • Germany: Notably, the win rate for infringement cases is higher (60%) compared to validity challenges (43.5%). This highlights the importance of bifurcated systems like Germany’s.
  • Japan: This jurisdiction has one of the lowest patentee win rates (20%), which may influence global litigation strategies for companies considering patent enforcement in Asia.

Sources:

  • 2018 Patent Litigation Study: For the US District Courts data, timelines and win rates are sourced from various case studies.
  • USITC Section 337 Statistics: For US International Trade Commission data, win rates and timelines are based on official reports on investigation completion times.
  • Forum Shopping and International Patent Litigation: Sources include global insights into patent enforcement strategies in different jurisdictions.

SUMMARY OF KEY POINTS

Ironically, as discussed in our 2021 alert, market studies have found that 1

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