Foreigners in US Patent Litigation: An Empirical Study of Patent Cases Filed in Nine US Federal District Courts in 2004, 2009, and 2012

Marketa Trimble · 17 Vand. J. Ent. & Tech. 175

Abstract

One of the greatest challenges facing patent holders is the enforcement of their rights against foreign (non-US) infringers. Jurisdictional rules can prevent patent holders from filing patent infringement suits where they have the greatest likelihood of success in enforcement, such as where the infringer is located, has its seat, or holds its assets. Instead, patent holders must file lawsuits in the country where the infringed patent was issued. But filing a patent lawsuit in a US court against a non-US infringer may be subject to various difficulties associated with the fact that US substantive patent law (particularly as regards its territorial scope) and conflict of laws rules are not always compatible and interoperable with the conflict of laws rules of other countries. Such insufficient compatibility and interoperability can lead to US judgments not being enforceable outside the United States.

In the Hague Conference’s Judgments Project, which the Conference relaunched in 2012, the United States has an opportunity to negotiate internationally-uniform conflict of laws rules to improve cross-border litigation, including cross-border patent litigation. This Article provides data on cross-border patent litigation that can be used to show the extent of the cross-border patent litigation problem and assist in assessing the appropriate degree of US involvement in the Judgments Project.

The Article updates the author’s earlier research on cross-border aspects of patent litigation, contributes to the rapidly growing body of empirical literature on patent litigation (including the literature on the“patent troll” phenomenon), and enriches the literature on foreign litigants in patent disputes and on transnational litigation in general(both of which suffer from a dearth of statistical data).