I was updating my list of recent patent verdicts this afternoon and noticed something noteworthy. Of the five or so patent cases that have reached trial in the Eastern District since the beginning of the year, only one resulted in a complete plaintiff's verdict. One of the others resulted in a defense verdict, two were dismissed during trial either by the granting of a summary judgment or a judgment as a matter of law at the close of the plaintiff's case in chief, and the fourth resulted in a partially hung jury - the jury found infringement, but hung on damages, requiring a retrial on at least that much of the case. And that one plaintiff's verdict? It was $4.622 million, but was reduced by another JMOL to $1.39 million before judgment was entered. The last verdict of 2008 was similar - the plaintiff obtained a verdict for $3.5 million, but Judge Ward eventually entered a take-nothing judgment after invalidating a patent and granting JMOL motions. So the total recovery for plaintiffs in the last six cases tried locally was one judgment for $1.4 million.
You have to go back to last November to find some plaintiff's verdicts - $18.5 million for Agere against Sony and a little under $3 million in the Mass v. Ergotron case Judge Davis just issued his posttrial rulings on this morning. Of course last year ended up essentially 11-6 for plaintiff's (after 2007's disastrous 3-6) but this drops the win rate for the past year and a quarter to approximately 12-9 and for the past two and a quarter years to a dead-even 15-15 (not counting any reversals on appeals). I have to point out that these numbers are somewhat subjective because I'm factoring in the results of posttrial motions and at some point a recovery drops to the point that a win for the plaintiff at trial essentially ends up as a win for the defendant on damages. But over the long term I think they're more accurate this way.
Of course with patents trials going on as we speak in Marshall and Tyler, and another slated to start today downstairs in Marshall, these numbers are likely to change one way or another soon.