Now
that
we
have
crossed
the
halfway
point
of
2025,
it
is
as
good
a
time
as
any
to
take
a
look
at
the
numbers
underlying
modern
patent
litigation.
Making
this
exercise
more
timely
and
useful
is
the
recent
floating
by
Trump
administration
officials
of
a
“patent
tax”
to
replace
the
current
maintenance
fee
system.
Under
the
(admittedly
sketchy
at
best)
details
of
that
proposal,
patent
holders
would
pay
between
1%-5%
of
patent
value
as
a
tax
—
immediately
raising
the
question
of
how
patent
valuation
would
be
handled
under
the
proposed
new
scheme.
While
we
can
speculate
as
to
whether
this
trial
balloon
will
float
toward
a
successful
implementation
or
get
popped
before
really
taking
flight,
we
do
have
concrete
data
as
to
how
patent
owners
can
use
the
litigation
process
to
generate
value
from
their
infringed
patents. That
data,
available
in
Lex
Machina’s
Damage
Awards
Litigation
Report
2025,
helps
us
better
understand
just
what
kind
of
results
one
can
expect
from
successful
patent
assertion.
As
with
my
prior
takes
on
other
Lex
Machina
reports,
what
follows
are
three
idiosyncratic
takeaways
based
on
my
review
of
their
newest
release.
First,
the
report’s
context
on
the
“dramatic
growth”
of
patent
litigation
awards
relative
to
other
areas
of
litigation
deserves
further
consideration.
Second,
the
continued
rise
in
both
the
average
and
median
jury
award
in
patent
cases
is
pretty
wild.
Third,
the
sharp
decline
in
damages
awarded
in
cases
before
the
WDTX’s
Judge
Albright,
as
well
as
the
dominance
of
SDNY
judges
at
the
top
of
the
“Total
Damages
Awarded”
chart,
provides
an
interesting
denouement
to
what
seemed
an
unstoppable
Waco-based
patent
train
just
a
few
years
ago.
To
start,
I
commend
a
full
read
of
the
report’s
“Executive
Summary,”
with
its
discussion
of
the
interplay
between
the
litigation
and
insurance
industries
as
framed
by
the
current
debate
around
“social
inflation.”
In
an
environment
where
across-the-board
damages
awards
are
increasing,
disagreements
as
to
the
cause
of
that
growth
are
bound
to
occur.
For
insurers,
“social
inflation”
is
the
bogeyman,
as
it
has
“resulted
in
rapid
increases
in
claim
costs
for
key
liability
insurance
lines.”
Likewise,
defendants
in
patent
cases
and
their
allies
have
raised
the
alarm
for
years
about
the
ill
effects
engendered
by
the
introduction
of
third-party
litigation
funding
into
the
patent
litigation
mix.
In
that
vein,
as
the
report
notes,
litigation
funding
and
sophisticated
plaintiff
persuasion
tactics
“may
have
recently
allowed
damage
awards
to
flourish”
at
a
rate
exceeding
even
that
of
inflation.
Yet,
the
report
suggests
caution
is
warranted
in
terms
of
assuming
that
there
is
a
“clear
answer
about
whether
and
to
what
extent
‘social
inflation’
applies
across
various
types
of
civil
litigation.” Undergirding
that
suggested
caution
is
the
fact
that
“[p]ractice
areas
differ
wildly
in
terms
of
changing
values
of
damage
awards
from
2015-2024.”
So
even
though
“patent
infringement
and
trade
secrets,
have
experienced
dramatic
growth”
in
terms
of
damages
awarded,
other
areas
of
law
have
seen
less
action,
with
decreases
“in
both
volume
and
value.”
Further,
the
report
suggests
that
the
current
period
of
generally
rising
damages
awards
could
be
“a
normal
fluctuation
not
in
and
of
itself
sufficient
evidence
of
changing
societal
norms
about
lawsuits.”
In
short
the
proverbial
jury
is
out,
with
the
only
assurance
that
the
debate
will
continue
to
rage.
Second,
the
report’s
insights
into
the
“dramatic
growth”
in
patent
damages
awards
are
worthy
of
further
investigation.
Perhaps
the
biggest
driver
of
that
growth
is
the
increasing
willingness
of
juries,
especially
post-Covid,
to
award
large
damages
to
patent
owners
that
are
able
to
shepherd
their
cases
to
trial
and
verdict.
To
illustrate
this
growth,
let’s
take
a
look
at
a
few
numbers
disclosed
in
the
report.
Prior
to
2020,
2017
was
the
year
that
saw
the
most
patent
cases
get
to
a
jury
verdict,
with
34
such
verdicts.
In
2023
and
2024,
however,
the
number
of
cases
where
a
jury
awarded
damages
leapt
up
to
50
each
year,
which
means
that
we
are
getting
at
least
one
more
patent
case
a
month
going
to
trial
successfully
for
plaintiffs,
than
we
did
in
the
best
year
for
such
results
pre-Covid.
Likewise,
prior
to
Covid,
2018
was
the
year
with
the
highest
average
jury
award
for
patentees,
to
the
tune
of
a
bit
over
$32
million.
Since
trials
resumed
in
2020?
We
have
not
seen
a
year
where
the
average
jury
verdict
was
less
than
close
to
$39
million
—
and
the
numbers
for
2022-2024
are
staggering,
with
average
jury
awards
at
$74
million,
$58
million,
and
$83
million
respectively.
Dramatic
growth
indeed,
with
more
cases
getting
to
verdict
and
juries
awarding
ever-higher
verdict
amounts
as
well. While
it
seems
clear
that
the
demanding
standards
of
both
contingency
law
firms
and
third-party
litigation
funders
may
be
contributing
to
better
case
selection
and
more
staying
power
for
patent
plaintiffs,
it
also
seems
like
patent
trial
lawyers
and
their
damages
experts
are
doing
a
better
job
than
ever
getting
juries
to
reward
patent
owners
at
trial.
All
these
effects
are
linked,
at
least
to
some
extent,
because
one
of
the
ways
a
patent
case
becomes
attractive
to
contingency
lawyers
and
funders
is
where
the
damages
potential
is
sky
high,
leading
to
more
cases
going
to
trial
against
large
defendants,
whose
revenues
from
sales
of
infringing
products
contribute
to
large
damages
awards.
And
so
the
circle
continues
to
turn
with
no
end
in
sight,
subject
of
course
to
the
Federal
Circuit’s
wielding
of
its
mega
horsepower
damages
award
weed
whacker,
which
it
is
not
shy
about
doing.
Lastly,
it
is
a
humbling
reminder
for
the
patent
bar
that
while
we
may
handle
large
cases,
when
it
comes
to
generating
headline-worthy
verdicts,
big-ticket
class
action
cases
continue
to
generate
the
largest
damages
awards.
With
a
real
concentration
of
the
biggest
such
cases
in
the
Southern
District
of
New
York,
it
is
no
surprise
to
see
SDNY
judges
at
the
top
of
the
charts
in
terms
of
damages
awards
from
2022-2024
nationwide.
The
only
“patent
judge”
in
the
top
10,
WDTX’s
Judge
Alan
Albright,
actually
saw
a
big
decline
in
damages
awarded
year
over
year
from
2022-2024.
After
a
high-water
mark
of
$1.44
billion
in
2022,
2024
saw
only
$318
million
in
damages
awarded
in
his
court,
which
is
a
large
number.
But
that
number
is
more
comparable
nowadays
to
a
single
healthy
EDTX
patent
verdict,
rather
than
evidence
that
WDTX
juries
are
super
willing
to
reward
patentees
at
trial.
It
will
be
interesting
to
see
if
the
WDTX
can
keep
pace
with
EDTX
going
forward
on
this
front,
or
if
the
decline
in
jury
awards
will
cement
EDTX’s
“top
spot
as
the
leading
venue
for
patent
litigation
in
the
United
States.”
Ultimately,
we
once
again
can
see
from
the
report’s
presentation
of
data
that
modern
patent
litigation
remains
a
vibrant
and
challenging
pursuit
for
both
plaintiffs
and
defendants.
At
the
same
time,
the
continued
changes
in
the
patent
space,
both
implemented
and
being
proposed,
promise
to
make
the
upcoming
years
even
more
exciting
—
and
if
the
amount
of
damages
awarded
in
patent
cases
continues
to
increase,
even
more
lucrative
for
successful
litigants,
their
counsel,
and
the
litigation
funders
that
were
fortunate
enough
to
have
backed
the
winners.
I
am
sure
that
many
in
this
readership
feel
the
same
way.
Thanks
once
again
to
Lex
Machina
for
pulling
together
and
presenting
the
data
in
a
way
that
highlights
how
well
our
little
area
of
law
continues
to
adapt
and
grow.
Please
feel
free
to
send
comments
or
questions
to
me
at
[email protected]
or
via
Twitter:
@gkroub.
Any
topic
suggestions
or
thoughts
are
most
welcome.
Gaston
Kroub
lives
in
Brooklyn
and
is
a
founding
partner
of Kroub,
Silbersher
&
Kolmykov
PLLC,
an
intellectual
property
litigation
boutique,
and Markman
Advisors
LLC,
a
leading
consultancy
on
patent
issues
for
the
investment
community.
Gaston’s
practice
focuses
on
intellectual
property
litigation
and
related
counseling,
with
a
strong
focus
on
patent
matters.
You
can
reach
him
at [email protected] or
follow
him
on
Twitter: @gkroub.
Kathryn
