Will My Invention Sell? Acquire Out If It Will Sell before Spending Income on a Patent

Can patent lawsuits in the medical device industry be forecast? Innovation is at the heart of the medical device industry.

Of course, with the record number of patent applications being filed, and the large number of patents issued each year, it would be logical to expect that the number of patent related lawsuits would also increase.

Number of Claims

Since the claims set the boundaries of the invention, the applicant has an incentive to define the invention through a number of broad claims.

So how does the number of claims appearing in a patent correlate to the likelihood that the patent will someday be litigated? Empirical studies have found that litigated patents include a larger number of claims as opposed to non-litigated patents. In fact, one study determined that litigated patents had nearly 20 claims on average, compared to only 13 claims for non-litigated patents.

Patent claims are easily the most important part of the patent.

The field of technology protected by the patent may also explain why patents with a large number of claims are more likely to be litigated. The results show an average of 17 claims per patent. This number falls somewhere in the middle of the claim numbers for litigated and non-litigated patents cited above. In addition to having a higher chance of being litigated, these results may indicate that the crowded medical device industry values their patents and anticipates litigation, with the end result being patents having a larger number of claims.

Prior Art Citations

Researchers have used this citation information to conclude that the number of prior art citations appearing in a patent is a good predictor of whether a patent is likely to be litigated. One study found that litigated patents on average cited 14.2 U.S. patents, while non-litigated patents cited only 8.6 U.S. patents. The study also showed that litigated patents are more likely to be cited as prior art by other issued patents, and that litigated patents include more self-citations, that is, citations to other patents owned by the same assignee.

How do patents from the medical device industry compare? Again, using the small sample of endoscope patents noted above as a proxy for the medical device industry, the average number of U.S. patents cited was approximately 37. Although the study does not cite an average for self-citations, it does find that litigated patents received an average of 12.2 citations from other patents, compared to only 4.1 citations received on average for non-litigated patents. The average number of self-citations and citations received for the endoscope patents were only 1.74 and 0.34, respectively. Similarly, the large number of citations may be due to attempts to get around prior art in the crowded and ultra-competitive medical device field.

The study provides an explanation for why medical device patents are more likely to be litigated by noting that the medical device industry, as a whole, view patents as valuable assets.

Patent litigation is, in fact, on the rise. A large number of claims and prior art citations may increase a patent's likelihood to end up before a court. A crowded technological field may also lead to a higher risk of patent litigation.

Medical Device Industry Patent Litigation Likely to Rise?