Those claiming that we’ve seen an “explosion of patent litigation” in recent years have proven resilient to counterarguments, continuing even to generate questionable “statistics” to buttress their assertions.
Given the Obama Administration’s recent reversal of the International Trade Commission’s exclusion order against Apple in its patent dispute with Samsung, we are hearing once again that there has been an “explosion” of patents cases at the ITC. Just as with the standard arguments about the alleged patent litigation explosion generally, the arguments about patent filings in the ITC have has long been shown to be a myth, as the number of filings in patent cases at the ITC collapsed last year (2012). But even before 2012, there was no “explosion,” as only 1.94% of total patent infringement cases were filed in the ITC in 2011. It was merely a statistical trick of comparing only the piddling number of ITC cases against prior ITC cases that permitted some scholars to assert a “massive” jump from 29 cases to 70 cases in ten years (2001 to 2011). An adjudicative agency saw a jump in of just 41 cases in ten years—stop the presses, we must immediately address the problem of how over a decade there was a 58% increase in patent cases at the ITC! As I reported in an early blog posting on this subject, this is called “fun with statistics.” Again, it bears emphasizing that this is less than 2% of total patent cases filed in the district courts.
Yet the myth of a “patent litigation explosion at the ITC” continues unabated, and it continues to be supported by the same “funny math” that has sustained this myth in the past. This summer, this funny math appears in no less than the august law journal, the Harvard Law Review. Despite law student editors’ excellence in fact-checking every single claim asserted in journal articles, they somehow let the following slip through the cracks in the June 2013 issue of the Harvard Law Review:
One commentator has estimated that nearly fifteen percent of all patent trials in 2010 took place at the ITC. See Colleen V. Chien, Protecting Domestic Industries at the ITC, 28 Santa Clara Computer & High Tech. L.J. 169, 171 (2011). While there were only an average of ten patent cases filed each year at the ITC in the 1990s, Robert W. Hahn & Hal J. Singer, Assessing Bias in Patent Infringement Cases: A Review of International Trade Commission Decisions, 21 Harv. J.L. & Tech. 457, 460 (2008), that number increased to over twenty-five in the 2000s and has since exceeded sixty– including a record sixty-seven cases filed in 2011.
Note, Recasting the U.S. International Trade Commission’s Role in the Patent System, 126 Harv. L. Rev. 2337, 2339 n.15 (2013).
This footnote and the claim it supports in the main text is factually wrong and deeply misleading in the policy claim that it is supporting in the article itself. The fact that it comes from a student at Harvard Law School, someone who should be smart enough to recognize this basic point, is particularly troubling.
In effect, the first and last sentences of this footnote make it very clear to any reader that the author is comparing apples to oranges — comparing filings of requests for ITC investigations to district court trials. The unassuming reader who may not know anything about patent litigation might read this note and come away thinking that 67 cases filed in the ITC in 2011 represented 15% or more of the patent trials in the U.S. Um, no, that’s not right.
Every law student and lawyer knows that a court or agency filing is not the same thing as a trial. In fact, the majority of complaints filed in the district courts never reach trial for a variety of reasons, e.g., the claim is dismissed by the court, the parties settle, the plaintiff unilaterally withdraws the complaint, etc., etc. According to this footnote, a Harvard Law Student doesn’t know the difference between filing a complaint (either in a district court or in the ITC) and the trial that occurs many months if not years later.
In reality, ITC investigations account for a minuscule percentage of overall patent complaints filed each year, and here are the real numbers. In 2010, there were a total of 51 investigations instituted by the ITC for patent infringement. The total number of patent infringement complaints filed in US district courts that same year was 3301 complaints, out of the total 282,895 civil complaints filed. So, in reality, ITC proceedings account for only 1.5% of all patent litigation complaints filed in 2012, not 15%, as claimed in this Harvard Law Review article.
The proponents of the patent litigation explosion theory should stop relying on funny math to prove their case. They do themselves and the increasingly-misled public a disservice, especially when this funny math is used to push for real-world legislative changes, influences court decisions, and motivates other governmental agents, like the President, to take other actions.