Wednesday, July 09, 2008

Defendants winning more, post KSR

A study by Andy Gibbs reports:

In the 2006 [CAFC] cases reviewed for this study, 63% of the decisions found for the defendant, 37% favored the plaintiff. In
post-KSR cases, 71% of the decisions favored the defendant, while 29% found for the plaintiff. The 11% increase in post-
KSR decisions favoring the defendant reflects, on average, an increase of patents being declared invalid in the post KSR

Of citation analysis:

Forward citations have long been used as a proxy for patent value18, but, it’s well known that examiner’s “pet citations”
and self-citations routinely skew forward citation analyses, causing this metric to be an inconsistent and unreliable
predictor of patent quality. (...)

Consistently, patents in 2006, as
well as post-KSR cases decided for the plaintiff had
higher forward citation value scores compared to
patents in cases decided for the defendant.

[Yes, footnote 18 is a cite, to among others, Adam B. Jaffe (of Innovation and its Discontents):

Hall, Bronwyn H., Jaffe, Adam B. and Trajtenberg, Manuel. (2004). Market value and patent citations. JEL Classification: O31, O38 – 2004. ]


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