Patent Litigation Statisitics in Washington State 2008

Looking back on another year of patent litigation in Washington State, 2008 started out with a bang but fizzled to end the year down about 15% from last year , with just 42 cases through December. Washington had more patent cases this year than its neighboring states, Oregon (19); Idaho (3); and Alaska (0), but its patent docket in 2008 was still considerably smaller than California's (413), Texas' (394), New York's (160), Delaware's (165), and Illinois' (158), to name a few of the busiest jurisdictions in 2008. Washington's patent case load in 2008 was comparable to case loads from Georgia (55), Minnesota (47), Wisconsin (64), Virginia (56), and Massachusetts (51). (Source: Justia, as of 12/21/2008)

Judge Martinez (8) and Judge Pechman (7) were assigned the most patent cases in 2008. Other Judges were assigned about half as many, such as Judge Jones (4), Judge Robart (5), and Judge Lasnik (3). (Numbers are from the cases as assigned by the clerk's office. Cases may have been reassigned since then) Judge Zilly is on senior status but he was assigned two patent cases in 2008. Judge Coughenhour, also on senior status, is apparently no longer taking trademark cases and he was not assigned a patent case last year either.

Here is the complete 2008 case list by month filed and assigned judge.

November
Data Retrieval Technology LLC v. Sybase Inc et al	WA Western	Martinez
Vectra Fitness Inc v. Torque Fitness LLC	WA Western	Jones
October
ADC Technology Inc v. Microsoft Corporation et al	WA Western	Martinez
September
Amphipod Inc v. Penguin Brands Inc	WA Western	Pechman
Majestec 125 LLC v. Maritime Fabrications Inc	WA Western	Pechman
Wistron Corporation v. Samsung Electronics Co Ltd et al	WA Western	Pechman
August
Laughing Rabbit Inc v. OpticsPlanet Inc	WA Western	Robart
July
Chef'n Corporation v. Trudeau Corporation	WA Western	Pechman
Northwest Agricultural Products, Inc. v. Emerald Bioagriculture Corp	WA Eastern	Shea
Malki v. Franke Commercial Systems Inc. et al	WA Western	Martinez
Implicit Networks Inc. v. International Business Machines Corporation et al	WA Western	Tsuchida
Loops, LLC et al v. Phoenix Trading, Inc. et al	WA Western	Martinez
Widevine Technologies Inc v. Verimatrix Inc	WA Western	Robart
June
Nintendo of America Inc v. Nyko Technologies Inc.	WA Western	Lasnik
May
Microscan Systems Inc v. Cognex Corporation	WA Western	Martinez
Brower v. Lowe's Companies Inc et al	WA Western	Robart
Westfield Outdoor Inc v. GCI Outdoor Inc	WA Western	Jones
April
TGN, Inc v. CRS, LLC	WA Western	Pechman
VTran Media Technologies LLC v. Astound Broadband LLC et al	WA Western	Pechman
Unigen Pharmaceuticals Inc v. Perrigo Company et al	WA Western	Leighton
Gardner v. Toyota Motor Corporation et al	WA Western	Jones
Koninklijke Philips Electronics NV	WA Western	Pechman
American Piledriving Equipment Inc v. Hydraulic Power Systems Inc et al	WA Western	Martinez
Progressive International Corporation v. Jo-Ann Stores Inc.	WA Western	Lasnik
March
Zacklift International Inc v. Kooima	WA Eastern	Van Sickle
Progressive International Corporation v. CKC International LLC	WA Western	Theiler
Cequint Inc v. TECMobile Software LLC	WA Western	Jones
CRS LLC v. Valve Corp	WA Western	Donohue
February
Laughing Rabbit Inc v. Nashbar & Associates Inc	WA Western	Martinez
J & E Hynds LLC v. Hopscotch Technology Inc	WA Western	Arnold
BE Meyers & Co Inc v. Advanced Armament Corp	WA Western	Theiler
Implicit Networks Inc v. Advanced Micro Devices Inc et al	WA Western	Robart
January
Zodiac of North America Inc et al v. 1181969 Ontario Limited et al	WA Western	Martinez
Laughing Rabbit Inc v. J&S Marketing LLC	WA Western	Lasnik
Sterling International, Inc. v. Hiscox et al	WA Eastern	Shea
Airbiquity Inc v. AT&T Inc et al	WA Western	Theiler
Cequint Inc v. Pint-Sized Apps	WA Western	Robart
Cequint Inc v. Incipher Inc	WA Western	Zilly
Trinity Glass International Inc v. ODL Incorporated	WA Western	Bryan
Fascinations Toys & Gifts Inc v. Levitation Arts Inc et al	WA Western	Robart
Neometal WA Inc v. Industrial Strength Corporation	WA Western	Leighton
Procyte Corporation v. Johnstone et al	WA Western	Zilly

New Study Says Western District's Claim Construction Decisions Get Reversed Nearly 40% of the Time

A soon-to-be-published study in the Michigan Law Review says that claim construction decisions by the Western District of Washington were reversed by the CAFC 38.9 % of the time during the time period April 24, 1996 (the date of the Supreme Court's decision in Markman) and June 30, 2007. Presented by Professor David L. Schwartz, the study seeks to test the conventional wisdom that "[p]ractice makes perfect - the old adage promises that the more you practice, the better you will become." The theory here is that the busiest judicial districts for patent litigation (the Western District of Washington is ranked 14th in terms of the number of claim construction decisions appealed to the CAFC during this time period) ought to fare better over time in terms of claim construction reversal rate. The results of Schwartz' study may surprise you (or perhaps not). His study shows that the level of judicial experience with claims construction issues appears to have little, if any, impact on reversal rate. Nor does reversal rate decrease when a district court judge has more CAFC appeals. Indeed the busiest judicial district during this time period (measured either in terms of the number of appeals or the number of patent cases filed), the C.D. of California, had the highest reversal rate of any of the "busy" judicial districts for patent litigation, with 43.5% of all claim construction decisions reversed by the CAFC. In short, practice does not make perfect when it comes to issues of claims construction.

Why is this the case? Why doesn't "practice make perfect" in the realm of claim construction? The primary culprit according to Schwartz is that "[c]laim construction may be inherently indeterminate." You think? Do you mean to say there are multiple, potentially outcome-changing ways to interpret claim language? Forgive the sarcasm, but anyone who has litigated a patent case knows that claim construction in many cases is a crap shoot. It comes down to good advocacy and this why it is so important to choose your counsel wisely.

NOTE: This post was updated May 10, 2008 to reflect the fact that the study is not yet published and to provide an updated link.

Report for Washington State Patent Cases: March 2008

Patent case filings in Washington State remained strong through March. There were four cases filed total; three in the Western District and one in the Eastern District. This is one better than March 2007, which only had three patent cases total. So far, Washington is substantially ahead of where it was last year at this time in terms of the number of patent cases filed. Through March last year, there were only nine (9) patent cases filed. This year's total through March is eighteen (18), that's an increase of 100%.

Here is a list of cases for March.

Zacklift International Inc v. Kooima (WA Eastern) Judge Van Sickle

Progressive International Corporation v. CKC International LLC (WA Western) Judge Theiler

Cequint Inc v. TECMobile Software LLC (WA Western) Judge Jones

CRS LLC v. Valve Corp. (WA Western) Judge Donohue

Western District Patent Case Filings Remain Strong through February

Patent case filings in Seattle and Tacoma remained strong through February following a red-hot January. While there weren't half as many filings as in January, February 2008 saw four patent cases filed in Seattle and Tacoma, that is more than February 2007 which saw only three and more than February 2006, which also had only three. Total patent cases this year so far in Washington state number 14, with almost all of those in the Western District.

Laughing Rabbit Inc. V. Nashbar and Associates Inc., (08-cv-00339) (Judge Martinez) US Pat. No. D375,372 "Pocket Flashlight"

JE Hynds LLC v. Hopscotch Technology Inc., (08-cv-5083) (Judge Arnold in Tacoma) U.S. Patent No. 7,162,378 "Point of Play Terminal"

BE Meyers and Co. v. Advanced Armament Corp., (o8-cv-00228) (Judge Theiler) U.S. Patent No. 6,837,139 "Flash Suppressor"

Implicit Networks Inc. v. Advanced Micro Devices, Inc., (08-00184) (Judge Robart) U.S. Patent No. 6,629,163 "Methods and System for Demultuplexing a First Sequence of Packet Components to Identify Specific Components Wherein Subsequent Components are Processed Without ReIdentifying Components."

For more statistics about Seattle Patent Litigation, Follow this link.