Colleen V. Chien

90 Texas L. Rev. 283

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In this article, Professor Colleen Chien examines if, and to what extent, a patent’s acquired characteristics can be used to determine whether that patent is likely to end up in litigation. Although only around 1% of patents are ever litigated, patent lawsuits are disruptive and costly. Furthermore, their unpredictability makes patent litigation a practically uninsurable risk, causing companies to expend valuable resources accumulating patents that they believe might be asserted against them in the hope of preventing future litigation. To determine whether a patent’s acquired characteristics—those qualities that a patent develops after its issuance—can be used to enhance the predictability of patent litigation, Chien examines the relationship between eventual litigation and several acquired characteristics: changes in ownership, continued investment in the patent by the owner, collateralization, and citation to the patent.

Finding that litigated patents have markedly different acquired characteristics than unlitigated patents along all dimensions studied, and that these characteristics develop prior to litigation, Chien argues that acquired characteristics can be used to develop models that will enhance the predictability of patent litigation. She also asserts that, by highlighting the relationship between a patent owner’s identity and the likelihood of patent litigation, her findings argue in favor of reforming the patent-notice system to provide better information regarding patent ownership and transfer status in order to enhance the predictability of patent litigation.