Title

Do Biotech Patent Lawsuits Really “Overwhelmingly Lose?”: A Response to Our Divided Patent System

Publication Date

2015

Document Type

Article

Abstract

On October 14, 2014, Stanford’s Professor Mark Lemley tweeted “My new study with Allison & Schwartz shows that software and biotech patent lawsuits overwhelmingly lose.” He was referring to an article entitled Our Divided Patent System, co-authored by Lemley and two other prominent law professors. Taken at face value, the assertion that “biotech patent lawsuits overwhelmingly lose” would seem to hold troubling implications for biotechnology. In order to better understand the basis for Lemley’s assertion, I reanalyzed the underlying data and found that the situation is not nearly as bleak as his tweet might suggest. My significantly different interpretation of the same lawsuits arises in part from my decision to focus on favorable litigation outcomes rather than final patent adjudications. Thus, while Lemley and his co-authors found that biotech companies have only won with respect to 8% of the patents that have been taken to judgment, I looked at the same set of lawsuits and found that, out of a total of sixteen distinct biotech patent litigations, seven appear to result in favorable outcomes for the patent owner (44%). Not only did biotech patent owners benefit from favorable outcomes in nearly half of the litigations, the magnitude of these favorable outcomes was often substantial. This short article assesses the outcome of each biotech litigation identified in Our Divided Patent System, and explain the basis for my determination of favorable or unfavorable outcomes from the perspective of the patent owner.

Publication Title

Biotechnology Law Report

Volume

34

Issue

2

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