Patent Law

I received an inquiry from a consultant today posing three questions.  I obtained some preliminary information and have presented this below.  I realized during this research that I have included this type of information in posts over the years, but other than allowing readers to do searches of these prior posts using the blog search tool (Rollyo) I have not classified posts with this type of information.  As a result, I have added a new category for this information titled, "Facts & Stats."

In addition, if you have additional resources for this reader's questions, please post a comment here.

(1) # of US patents that are software/internet patents

Patent Counts By Class By Year

Class 717: Data Processing: Software Development, Installation, and Management

Pre-1988 - 35

1988 -15

1989 - 20

1990 - 16

1991 - 16

1992 - 33

1993 - 53

1994 - 96

1995 - 117

1996 - 126

1997 - 128

1998 - 308

1999 - 406

2000 - 372

2001 - 507

2002 - 334

2003 - 343

2004 - 416

2005 - 467

2006 - 752

2007 - 707

2008 - 707

TOTAL - 5,974

(See Part A1-1. Patent Counts By Class By Year; Patent Counts Based on ORIGINAL Classification Only; Number of Patents Granted as Distributed by Year of Patent Grant, Breakout by U.S. Patent Classification System Class; Table A1-1, Breakout by U.S. Patent Classification System Class; Patent Counts Distributed by Year of Patent Grant; Patents Granted: 01/01/1977 - 12/31/2008; http://www.uspto.gov/web/offices/ac/ido/oeip/taf/cbcby.pdf.)

(2) # of US patents (all patents) that are declared invalid in US (annually) via litigation (%)

John R. Allison & Mark A. Lemley, Empirical Evidence on the Validity of Litigated Patents, 26 AIPLA Q.J. 185 (1998), at 205.  The authors analyzed data on Federal Circuit patent validity rulings during 1989-96 in cases in which the court provided written opinions, concluding that the court had upheld validity in 54% of the cases and found invalidity in 46%.  Donald R. Dunner et al., A Statistical Look at the Federal Circuit?s Patent Decisions: 1982-1994, 5 FED. CIR. B.J. 151 (1995), at 153-55.  Studied Federal Circuit validity rulings on a statutory section-by-section basis for the period 1982-94.  They concluded, for example, that the court had ruled in favor of validity under 35 U.S.C. §§ 102 and 103, 58% of the time, at 154-55. (See footnote 10 of Janicke, Paul M. and Ren, LiLan, Who Wins Patent Infringement Cases?. American Intellectual Property Law Association Quarterly Journal, Vol. 34, p. 1, 2006. Available at SSRN: http://ssrn.com/abstract=960633)

(3) # of US software patents that are declared invalid in US (annually) via litigation (%)

Observed as a single factor, win rates varied to some extent with the main technology involved in the case.  Unfortunately, dividing our limited population into nine separate technologies reduced the number of data points in most of them to numbers that are not statistically meaningful.  The selection was largely arbitrary, based on perceived interest among commentators and the profession.  Other commentators have looked at this phenomenon.  See, e.g., Dan L. Burk & Mark A. Lemley, Is Patent Law Technology-Specific?, 17 BERKELEY TECH. L.J. 1155, 1156 (2002) (concluding that the patent system, while technology-neutral in theory, is technology-specific in application); Amir A. Naini, Convergent Technologies and Divergent Patent Validity Doctrines: Obviousness and Disclosure Analyses in Software and Biotechnology, 86 J. PAT. & TRADEMARK OFF. SOC?Y 541, 544-63 (2004) (discussing differences in validity standards for biotechnology and software patents).  (See page 19 - 20 and footnote 31 of Janicke, Paul M. and Ren, LiLan, Who Wins Patent Infringement Cases?. American Intellectual Property Law Association Quarterly Journal, Vol. 34, p. 1, 2006. Available at SSRN: http://ssrn.com/abstract=960633)