By Donald Zuhn --
A study in last month's issue of Nature Biotechnology calls into question the perception that litigation rates -- at least for one particular industry -- are rising. The study, entitled "DNA-based patents: an empirical analysis" (the full text of the article can be obtained here for $32), was conducted by Ann Mills, Associate Professor of Medical Education and Director of Outreach Programs at the University of Virginia Center for Biomedical Ethics, and Dr. Patricia Tereskerz, Associate Professor of Medical Education and Coordinator of Research for the University of Virginia Center for Biomedical Ethics. The motivation behind the study was the suggestion by patent reform proponents that allegedly rising litigation rates justified the need for such reform. However, Ms. Mills and Dr. Tereskerz note that "[a]lthough there is anecdotal evidence supporting the perception that the rate of litigation is rising, there is little empirical evidence supporting this."
In their study, Ms. Mills and Dr. Tereskerz examined DNA-based litigated patents to determine whether the litigation rates for such patents are actually increasing. The researchers' dataset consisted of 211 cases involving DNA-based patents issued between 1982 and 2005. Interestingly, Ms. Mills and Dr. Tereskerz found that in 163 of these 211 cases (77%), a complaint was filed with no further action being taken.
To determine litigation rates, Ms. Mills and Dr. Tereskerz divided the number of cases filed by the total number of DNA patents issued in a given year. The results of their analysis are shown in Figure 2 below:
(Mills and Tereskerz, Nature Biotechnology 26: 993-95 (2008)). The study indicates that "[b]etween 2000 and 2005, the rate of patent litigation for the patent classifications studied dropped significantly from 14/3,827 to 1/2,772 (P < 0.0006)."
While Ms. Mills and Dr. Tereskerz caution that the results of their study cannot necessarily be extrapolated to other types of patented subject matter, they suggest that the results "should call into question whether the perception of rising litigation rates is valid for some industries and whether this argument can continue to be used to justify patent reform without additional research." The authors argue that the need for additional research is particularly important "when passage of such legislation may be accompanied by introducing uncertainty as to patent validity, which may in turn discourage investment in younger industries and ultimately stifle innovation and commercialization."
Patent Docs thanks Dr. Larry Millstein of Holland & Knight for alerting us to the above article.
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