PWC has published the latest installment in its excellent yearly patent litigation survey.  This year’s survey looks at data for every year from 1995 through 2012.  And once again this year’s survey focuses even more on the dichotomy between NPEs and practicing entities.  I use the term “NPE” because the PWC study includes non-practicing entities such as universities in its NPE definition, which most agree are not trolls in the normal case.  Here are some highlights of the study:

  • The AIA anti-joinder provision did exactly what most retailers expected — very little. While the average number of defendants per suit is down almost 40%, the total number of suits is up 30%. The anti-joinder provision was not a significant impediment to NPEs.
  • NPEs have an overall 24% success rate, significantly lower than the 34% success rates for practicing entities. PWC points out that much of the difference is because of NPE’s general lack of summary judgment success.
  • NPEs are not created equal. University and non-profit NPEs have better success rates than other NPEs, such as trolls.
  • NPEs favor jury trials more than practicing entities. Interestingly, the percentage of NPEs using jury trials versus bench trials is down from 2001 – 2006 (71%) to present, 2007-2012 (61%).
  • NPEs are significantly more successful in jury trials — 81% before a jury as compared to 56% in bench trials.

What can retailers take away from the PWC study?

  • It confirms common belief: Jury trials are better for trolls.
  • While summary judgment is usually hard to win, defendants are more successful than NPEs. The big question is whether that means anything. I think most would agree that defendants put more value on summary judgment and, therefore, likely more effort into it. Based upon that, defendants’ greater success on summary judgment is not surprising.
  • NPEs continue to press for courtrooms and juries. NPEs do better with juries than with judges. It is no surprise that NPEs continue to press to get cases in trial postures.