Glossary

#Glossary

ANDA Case*

ANDA Case indicates cases that have at least one pleading asserting patent infringement under the Hatch-Waxman Act.

Accusation*

In a Patent Case, an Accusation is a request for relief, the resolution of which could determine if a patent has been infringed or the patent’s validity or enforceability.

Example


For example, a case with one plaintiff asserting one patent against one defendant would involve one Accusation. A case with one plaintiff asserting 5 patents against 10 defendants would result in 50 Accusations. Multiple claims involving the same parties and patents (e.g., a claim of infringement and a declaratory judgment counterclaim of invalidity or unenforceability) are counted as a single accusation. In a PTAB proceeding, each challenge to the patentability of a patent counts as a patent accusation. Docket Navigator records Accusations as a group of data consisting of a Patentee name, a Patent Challenger name (often an accused infringer), the patent being asserted or challenged, and the Outcome of the Accusation.
image of patent accusation map

Accusation Outcome*

In a Patent Case, an Accusation Outcome is the resolution of an Accusation. In U.S. district court cases, the Accusation Outcome indicates the resolution of the Accusation with respect to the issue of liability. For example, a finding of noninfringement would be recorded as a Patent Challenger win because there was no finding of infringement liability. In ITC investigations Accusation Outcome indicates the resolution of the Accusation with respect to the question of whether a violation of 19 U.S.C. §1337 occurred. In PTAB proceedings, Accusation Outcome indicates the resolution of the Accusation with respect to patentability of the challenged patent. Patent Accusation Outcomes indicate whether the Patent Accusation was resolved in the Patent Challenger’s favor, the Patentee’s favor, via settlement, or in a non-merits decision. Accusations resolved by the parties (e.g., via voluntary dismissal or settlement) are recorded as settlements. Accusation resolved by the court on grounds other than the merits of the patent claims are recorded as non-merits decisions. These can occur in a number of procedural settings, but most commonly are FRCP 12(b) dismissals for failure to state a claim, lack of personal jurisdiction, lack of subject matter jurisdiction, lack of standing, etc. See also Case Outcomes below.

Example


image of outcomes

Case Outcome*

In a Patent Case, the phrase “Case Outcome” can be somewhat confusing. Some claims and counterclaims in the case may be won, others lost and still others settled, making it difficult to discern who “won” or “lost” the case. In Docket Navigator, Case Outcomes are based on Accusation Outcomes. Once all of the Accusations in a case are resolved, Accusation Outcomes can be applied. Docket Navigator then categorizes Cases into four classifications based on the mix of Accusation Outcomes in those Cases.

  • “Patentee Win” includes cases with any of the following accusation outcomes:
    • Patentee Win
    • Non-Merits Dismissal (in declaratory judgment cases and PTAB cases)
  • “Patent Challenger Win” includes cases with any of the following accusation outcomes:
    • Patent Challenger Win
    • Non-Merits Dismissal (in non-declaratory judgment cases)
  • “Mixed” includes cases with a combination of the above types of outcomes.
  • “Settled/Voluntarily Dismissed” includes cases with only settled or voluntarily dismissed accusation outcomes.
Example


image of caseoutcomes

Claim Construction*

A Claim Construction occurs when a court or administrative agency defines or gives meaning to a patent claim or term in a Patent Case. In district court Patent Cases, Claim Constructions may occur in special orders called “Claim Construction Order” or “Markman Order,” but they may also occur in orders on motions for summary judgment, motions for judgment as a matter of law, motions for judgment on the pleadings, and many others. Docket Navigator records Claim Constructions as a group of data consisting of (i) the term or phrase being construed, (ii) the definition (construction), and (iii) the patent number.

Highly Assertive Entities (HAE)*

To identify HAEs, we begin by studying groups of related parties (hereafter called "affiliate groups" or just "groups"). An affiliate group's members are HAEs if the group meets the following criteria:

  • The group has made at least 275 non-Orange Book Patent Accusations since 2015.
  • The group has been a patentee in at least 30 Patent Cases since 2015.
  • The group was a Patentee on non-Orange Book Patent Accusations more often than they were a Patent Challenger since 2015, at a ratio of at least 40:1
  • At least one member of the group was a Patentee in 10 or more Patent Cases within a 10-day window, at least once since 2015.
  • At least 5 patents asserted by the group in US District Courts have also been challenged in the Patent Trial and Appeal Board (PTAB).

Next, we break down those affiliate groups into individual parties, and the following are excluded:

  • Parties who have never made a patent infringement accusation.
  • Parties who have themselves been accused of patent infringement more than 10 times.

Milestone or Litigation Milestone*

A Milestone (sometimes referred to as a Litigation Milestone) is a stage of the litigation process such as claim construction, summary judgment, entry of a damage award or injunction, trial, etc. Each Milestone is defined as the filing of one or more of a group of documents related to that Milestone. For example, filing of a jury verdict would indicate the proceeding had reached the Jury Trial Milestone. Individual Milestones are defined below:

Types of Milestones


Claim Construction - This Milestone occurs when a court or administrative agency defines or gives meaning to a patent claim or term in a Patent Case. In district court Patent Cases, Claim Constructions may occur in special orders called “Claim Construction Order” or “Markman Order,” but they may also occur in orders on motions for summary judgment, motions for judgment as a matter of law, motions for judgment on the pleadings, and many others. Docket Navigator records Claim Constructions as a group of data consisting of (i) the term or phrase being construed, (ii) the definition (construction), and (iii) the patent number.

Patentee MSJ - This Milestone includes orders on summary judgment motions filed by patentees including (i) motions for summary judgment of infringement, (ii) motions for summary judgment that a claim or defense of invalidity is without merit, and (iii) motions for summary judgment that a claim or defense of unenforceability is without merit. The Milestone indicates that a ruling was made, not the outcome of the motion.

Infringement – This Milestone includes orders that include a Patent Determination of “Infringed.” This Milestone is based on the existence of a Patent Determination, not the type of order.

Patent Not Invalid - This Milestone includes orders that include a Patent Determination of “Not invalid.” This Milestone is based on the existence of a Patent Determination, not the type of order.

Patent Enforceable - This Milestone includes orders that include a Patent Determination of “Not unenforceable.” This Milestone is based on the existence of a Patent Determination, not the type of order.

Patent Challenger MSJ - This Milestone includes orders on summary judgment motions filed by patent challengers/accused infringers including (i) motions for summary judgment of noninfringement, (ii) motions for summary judgment of patent invalidity, and (iii) motions for summary judgment of patent unenforceability. The Milestone indicates that a ruling was made, not the outcome of the motion.

Noninfringement – This Milestone includes orders that include a Patent Determination of “Not infringed.” This Milestone is based on the existence of a Patent Determination, not the type of order.

Patent Invalid - This Milestone includes orders that include a Patent Determination of “Invalid.” This Milestone is based on the existence of a Patent Determination, not the type of order.

Patent Unenforceable - This Milestone includes orders that include a Patent Determination of “Unenforceable.” This Milestone is based on the existence of a Patent Determination, not the type of order.

Damages – This Milestone includes orders that award a Damages Remedy. The chart does not reflect changes that may apply to the awards at a later date, e.g., reconsideration or reversal on appeal. This Milestone is based on the existence of a Remedy, not the type of order.

Injunction/Ongoing Royalty - This Milestone includes orders that award a Permanent Injunction or Ongoing Royalty (sometimes awarded in lieu of a Permanent Injunction) Remedy. The chart does not reflect changes that may apply to the awards at a later date, e.g., reconsideration or reversal on appeal. This Milestone is based on the existence of a Remedy, not the type of order.

Enhanced Damages/Attorney Fees - This Milestone includes orders that award Enhanced Damages or Attorney Fees Remedies. The chart does not reflect changes that may apply to the awards at a later date, e.g., reconsideration or reversal on appeal. This Milestone is based on the existence of a Remedy, not the type of order.

Sanctions - This Milestone includes orders that award Sanctions Remedies. The chart does not reflect changes that may apply to the awards at a later date, e.g., reconsideration or reversal on appeal. This Milestone is based on the existence of a Remedy, not the type of order.

Jury Trial - This Milestone includes orders and documents of the type that typically occur near the time of a jury trial such as Jury Instructions and Verdicts. It does not indicate the exact date of trial.

Bench Trial - This Milestone includes orders and documents of the type that typically occur near the time of a bench trial such as Findings of Fact and Conclusions of Law. It does not indicate the exact date of trial.

Transfer - This Milestone includes orders on motions requesting transfer of the case to another court or judge including orders on motions to transfer venue for convenience under 28 U.S.C. § 1404(a), for improper venue under 28 U.S.C. § 1406(a), under the first to file rule, under the Patent Pilot Program, or any other basis.

Stay - This Milestone includes orders on motions requesting a stay of all or a portion of the proceeding for any reason.

Likely Settlement - This milestone occurs when PACER, EDIS, or PTAB E2E reports a Patent Case as terminated and the terminated case did not reach any of the Milestones listed above.

Mature Termination - This milestone occurs when PACER, EDIS, or PTAB E2E reports a Patent Case as terminated and the terminated case reached at least one of the Milestones listed above.

Appeal - This milestone is based on the filing of a document indicating an appeal of the proceeding such s a Notice of Appeal.

Non-merits Dismissal*

Non-merits Dismissal indicates a dismissal on procedural grounds without addressing the merits.  Common examples include Rule 12 motions, default, failure to prosecute, or terminating sanctions.

Mature Case Experience*

Mature Case Experience indicates cases that have a termination date provided by PACER, EDIS, or PTABE2E and contain at least one Milestone.

Patent Case*

Patent Case means (i) a federal civil action in a U.S. district court or the Court of Federal Claims addressing the infringement, validity or enforceability of a U.S. patent flagged with Nature of Suit ("NOS") 830 in the PACER system as well as other cases that are known to meet the above criteria, (ii) investigations by the U.S. International Trade Commission ("ITC") pursuant to 19 U.S.C. §1337 and 19 C.F.R. Parts 201 and 210 involving allegations of infringement of a U.S. patent as reported in the ITC’s Electronic Document Information System ("EDIS"), and (iii) applications to the U.S. Patent and Trademark Office Patent Trial and Appeal Board ("PTAB") under 35 U.S.C. § 6(b)(4) (including IPR, CBM and PGR review), as reported in the PTAB’s Patent Review Processing System ("PTAB E2E") (this does not include proceedings conducted pursuant to 35 U.S.C. § 6(b)(1)-(3) such as appeals of adverse decisions of examiners, appeals of reexaminations, or derivation proceedings).

Patent Challenger*

A Patent Challenger (sometimes referred to as an accused infringer) is a litigant in a Patent Case who is accused of infringing a U.S. patent or who is challenging the infringement, validity or enforceability of a U.S. patent. In district court cases a Patent Challenger is usually a defendant, but may be a plaintiff in declaratory judgment cases (i.e., cases in which the complaint seeks a declaration of patent noninfringement, invalidity or unenforceability). In the ITC a Patent Challenger is usually a respondent. In the PTAB a Patent Challenger is the petitioner.

Patent Challenger Firm*

A law firm representing a Patent Challenger.

Patent Challenger Attorney*

An attorney representing a Patent Challenger.

Patent Classification*

In 2013, the U.S. Patent and Trademark Office (PTO) began transitioning from the US Patent Classification (USPC) system to the Cooperative Patent Classification (CPC) system. Prior to that time, U.S. patents included only USPC codes. In 2013 and 2014, U.S. patents were assigned both USPC and CPC codes. In 2015, the PTO began issuing patents with only CPC codes and assigned CPC codes for older patents, except for design and plant patents which continue to issue with USPC codes.

Both systems allow patents to be tagged with more than one classification when the patent overlaps several areas. The USPC system is not inherently hierarchical, however the National Bureau of Economic Research organized the approximately 600 USPC codes into six categories and 39 subcategories. The CPC system is inherently hierarchical with nine top-level divisions, 126 subcategories, and about 650 4-digit CPC codes (all subject to revision). Both the USPC and the CPC divide these codes into multiple levels of subcodes.

Docket Navigator tags litigated patents with either both USPC and CPC codes when the data is available from the PTO. The complete list of codes and their titles is available on the Abstract tab of the patent detail page under the headings: Main U.S. Patent Class, Other U.S. Patent Classes, U.S. Patent Class Search Field, and Cooperative Patent Classes. The complete list of subcodes are available under the headings: U.S. Patent Class subcodes and Cooperative Patent Classes subcodes.

A search by patent class in Docket Navigator returns patents, or other items associated with those patents, which are tagged with any of the specified USPC or CPC class codes. Selecting the criteria shows a hierarchical arrangement with both the USPC and CPC classes at the highest level. A search may include categories from either or both systems.

Patent Determination*

A Patent Determination occurs when a court or administrative agency issues a decision that determines the infringement, validity (or patentability), or enforceability of one or more claims of a patent. There may be more than one determination per patent and determinations may be overturned or reversed in later proceedings. Determinations may be made in connection with a stipulation or agreement of the parties, but many searches allow for the exclusion of such determinations if desired. Determinations are recorded by patent number, not individual claims.

Patentee*

A Patentee (sometimes referred to as a patent owner) is a litigant in a Patent Case who claims to hold rights to a U.S. patent. In district court cases a Patentee is usually a plaintiff, but may be a defendant in declaratory judgment cases (i.e., cases in which the complaint seeks a declaration of patent noninfringement, invalidity or unenforceability). In the ITC a Patentee is usually a complainant. In the PTAB a Patentee is the patent owner.

Patentee Firm*

A law firm representing a Patentee.

Patentee Attorney*

An attorney representing a Patentee.

PTAB Institution*

A PTAB Institution is a decision by the Patent Trial and Appeal Board determining whether to institute review of a ground for unpatentability in a petition for Inter Partes Review, Covered Business Method Review, or Post-Grant Review. Docket Navigator records PTAB Institutions as a group of data consisting of a statutory ground for unpatentability (e.g. § 101, § 102, § 103, § 112), the claim or claims being challenged, and the result of the PTAB’s decision with respect to institution.

The concept of a “case” is relatively well understood by those involved in litigation. But cases are often related to other cases in ways that blur the distinction between the two. For example, if a case is transferred to another court, how many cases exist? Is it accurate to say the plaintiff filed two cases or that the patent was asserted in two cases? It is probably more accurate to regard that as a single case that existed in two different courts at two different times. Yet the public record includes two different case numbers and two different dockets. How those two dockets are publicly recorded is determined by local judges and clerks, and varies substantially. For example, when receiving a transferred case, some courts duplicate all the documents that were previously filed in the earlier case, but other courts do not. Similarly, when entering orders in consolidated actions, some courts record a single document that applies to all constituent cases, while other courts enter duplicate documents in each individual case. Correctly associating events (pleadings, motions, orders, etc.) with the correct proceeding is crucial for accurate legal research and analysis because it avoids both double counting and missing key litigation events.

Docket Navigator manually associates documents, and all of the data associated with those documents, with each case in which it forms a part of the proceedings. This association allows us to accurately identify all cases in which an instance of a particular action, event or sequence of events occurred. It also allows us to correctly identify unique instances of particular events without regard to any duplicate recording due to local recording policies.

Trial Experience*

Trial Experience indicates cases that have documents typically filed at or near the time of a trial.  For jury trials, this includes Jury Notes or Instructions, and Verdicts. For bench trials, this includes Findings of Fact and Conclusions of Law.