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

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.” The "study" he was referring to is Our Divided Patent System, an article co-authored by Lemley and two other prominent law professors, which found that biotech companies have only won with respect to 8% of the patents that have been taken to judgment.  

In order to better understand the basis for Lemley’s assertion, I reanalyzed the data underlying Our Divided Patent System, and found that the situation is not nearly as bleak as Lemley's tweet might suggest. For example, while Our Divided Patent System reported 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. 

My full response to Our Divided Patent System, which originally appeared in Biotechnology Law Report, is available here.