I wrote last week about some key implications of PWC’s excellent 2011 patent litigation study.  The study is so dense that it deserves more discussion.  Here are several of the key takeaways from the study. 

  • Big Dollars for Trolls.  Troll damages awards were nearly double those of practicing entities received by practicing entities.
  • NPE’s Are Not All Equal.  Looking at all non-practicing entities, universities and non-profits are more successful than trolls, but their median damages awards are considerably lower.
  • Trolls Wither on the Papers.  Trolls and practicing plaintiffs are equally successful at trial, but practicing entities are much more successful winning on summary judgment. 

There are several important points and strategies to draw from these statistics:

  1. Keep Trolls Off Their Feet.  Trolls may not win more often in the courtroom, but when they do they get juries to give them more money.  Even though judges later fix some of the awards, that is still a bad trend.  And trolls do not do as well on the papers where accuracy, organization, research, and clear writing carry the day.  So, retailers should be driving toward clear summary judgment motions and bench trials when possible. 
  2. Fight Fire With Fire.  When choosing counsel look for counsel who are not just technically and legally sound, but can also advocate and persuade.  It is obviously critical to be able to counter the troll’s courtroom effectiveness. 
  3. Focus on Trial.  Using skilled advocates is important, but the most skilled advocate is only as valuable as the facts they have to work with.  So, you need to set up defense strategies with a focus on trial — even if you never expect to go to trial.  Your entire defense should be colored by preparing for trial and your trial strategy, not just meeting case deadlines.