How to Win Patent Litigation With Big Data - Huawei vs Samsung

July 5, 2017 hiltje beijer

                     

On May 24, 2016, Huawei filed a patent infringement lawsuit against Samsung Electronics before the Northern District Court of California (“N.D. Cal.”) in the U.S. This case has led to heated discussions in the patent arena. Practitioners have analyzed the key issues, the asserted patents and relevant 4G telecommunication standard, and the allegedly infringing products by Samsung. However unique insights can be gained by reviewing data analytics around this case.
The application of big data in legal practice has enabled a unique perspective distinct from the traditional legal research. Why did Huawei choose N.D. Cal. to file the case? What is the tendency of judge O. who has been assigned to the case? How was the experience and performance of both parties’ law firms before the court? Today we would like to share with you insights utilizing big data analytics.

We used Lex Machina as our IP litigation analytics platform. First a brief explanation of how Lex Machina works. Lex Machina scans and extracts data every day from all U.S. District Courts, PTAB, and ITC. That is to say, Lex Machina stores the complete docket entries of each IP case, which constitute the foundation for further data analytics. For instance, you can find the up-to-date documents of Huawei vs. Samsung case on Lex Machina, as shown in Fig. 1 below. Then Lex Machina cleans, tags, and structures the messy legal data, thereby
producing insights including case outcomes, damages, findings, timing, etc.

                   

I. Court venue
The first aspect we would like to analyze is the venue, for the purpose of identifying possible reasons that Huawei chose N.D. Cal. N.D. Cal. has been deemed by practitioners as a relatively neutral court, compared to popular court venues such as Eastern District Court of Texas. Fig. 2 below shows the case resolution chart of all terminated patent cases by this court, while Fig. 3 shows that of the national average in the U.S. Specifically, the ratio of “Claimant win” to “Claim Defendant win” (6% to 6%) is about 1:1, while on the national level that ratio (8% to 4%) is about 2:1. At least from this data, N.D. Cal. does not favor plaintiff in view of the national average. Moreover, in order to see the timing of N.D. Cal. we generate boxplots for N.D. Cal. and all district courts, as shown in Figs. 4 and 5, respectively.i N.D. Cal. appears a little faster than the national level in entering claim construction hearing, while in all other aspects (issuing permanent injunction, entering trial, and terminating cases) it shows no particularity. In terms of both court tendency and efficiency, N.D. Cal. does not seem to be the optimal choice for plaintiffs in patent cases.

                              

                                      

We further checked the experience of both parties before N.D. Cal., as shown in Figs. 6 and 7. Huawei has had 6 patent cases before the court: 5 as defendant and 1 as plaintiff, which is the current case. By contrast, Samsung has had 576 patent cases before the court, mostly as a defendant.1 Regardless of case resolution of these 576 cases, Samsung has much more experience before this court than Huawei does. 1 One possible reason is that Samsung Research America (“SRA”), an important R&D center of Samsung in the U.S., is located in
California within the jurisdiction of N.D. Cal. SRA is also one of the defendants in Huawei vs. Samsung case.

* One possible reason is that Samsung Research America (“SRA”), an important R&D center of Samsung in the U.S., is located in
California within the jurisdiction of N.D. Cal. SRA is also one of the defendants in Huawei vs. Samsung case
.

Finally, perhaps one of the major reasons that Huawei chose N.D. Cal. lies in the two Apple vs. Samsung cases before the same court: one patent case (5:12-cv-00630-LHK), and the other design (5:11-cv-01846-LHK). Both were concerning cellphone patents, the same subject as the present Huawei vs. Samsung case.
More importantly, in both cases Apple was awarded huge amount of damages in a jury trial. The jury verdicts of both cases have further been affirmed by Federal Circuit, even though one is under the review by Supreme Court now. These two cases may have been sufficient motivation for Huawei to sue Samsung before the same court. Nevertheless, it could be considered a risky decision in light of the data analytics information shown above.
                              

II. Judge Tendency

The second aspect of this case we would like to analyze is Judge O., who has been assigned to the Huawei vs. Samsung case. N.D. Cal. has more than twenty judges, and a plaintiff does not know which judge will be assigned to them at the time of filing. After a case is filed, a judge will be assigned to the case relatively randomly. There are times when the preferred litigation strategy is difficult to execute because a plaintiff files a case before a court that tends to favor plaintiffs but then is assigned to a judge who tends to award defendants. Therefore, it would make sense to analyze judge’s tendency vis-à-vis the tendency of the court he or she works for.


Firstly, we checked the patent case timing of Judge O. in the past five years versus that of N.D. Cal., as shown in Figs. 8 and 9, respectively. Judge O. has been relatively fast in terminating cases as compared to his colleagues, specifically 100 days faster at the 75th percentile. Secondly, Judge O. has only two trial cases so we have reason to suspect that he prefers to avoid jury trials. This is further validated by the case resolution chart of this judge (Fig. 10). It shows that 80% of the cases have been settled, higher than the 74% of N.D.Cal. (Fig. 2). In view of above, it is reasonable to assume that Judge O. will try to reconcile the parties in this case too, and quite likely the two parties will enter a settlement instead of having a jury trial.

                   

                   

Furthermore, to succeed in motion strategy before Judge O., it is worth checking the motion metrics report of the judge, as shown in Fig. 11. In the report, there are several motion types, with the grant rate of each indicated. For example, Judge O. denied 67% of the transfer motions, higher than the national average which is 43%. This would be valuable information for the defendant to decide whether to file such a motion before this judge. Also, we may check the specific motions that have been granted or denied by this judge, thereby finding out arguments that have had success in the past.
 

                   

III. Law Firm Comparison
The last aspect we would like to compare is the performance of the two law firms in the case: Lawfirm A representing Huawei, and Lawfirm B. (hereinafter referred to as “Lawfirm B” for short) representing Samsung.
First of all, from case number of both law firms shown in Figs. 12 and 13, we can see that both are top law firms in the U.S. Lawfirm A has fewer patent cases in recent years than Lawfirm B, but more antitrust cases than the latter. Figs. 14 and 15 provide the client lists of both, all big names. Nevertheless, Lawfirm B’s role in representing clients is more diverse than Lawfirm A, who has usually represented defendants rather than plaintiffs.
 

                      

                             

Moreover, we would like to know the experience of both law firms before N.D. Cal. As can be seen in Figs. 16 (Lawfirm A) and 17 (Lawfirm B), Lawfirm B has about 100 more patent cases before the court than Lawfirm A.
Also, we checked the efficiency of both law firms in handling patent cases before the court, as shown in Figs.18 (Lawfirm A) and 19 (Lawfirm B). Interestingly, Lawfirm B is faster than Lawfirm A in every single aspect. For instance, it takes Lawfirm A a median time of 480 days to enter a claim construction hearing while for Lawfirm B the median time is only 394 days. In terms of the time to enter trial, at the 75th percentile for Lawfirm A it is 1211 days while for Lawfirm B only 1016 days. Hence, Lawfirm B has not only more experience before N.D. Cal., but also better performance in terms of timing.

                     

                            

Lastly, we compared the performance of both law firms before PTAB. Figs. 20 (Lawfirm A) and 21 (Lawfirm B) show the Sankey charts of PTAB cases in which both law firms represent patent owners, respectively. In the Sankey chart, different outcomes of a PTAB case have been categorized into one of the three results: “Petitioner win”, “Patent owner win,” or “Partial.” When representing patent owners, Lawfirm A won 33% of the cases while Lawfirm B won 46% of the cases. Furthermore, the final decision of “All Claims Unpatentable” equates to an utter failure for a patent owner. For Lawfirm A, cases with such a decision (all claims were found unpatentable) account for 22%, while for Lawfirm B this parameter is only 2%.
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Also, we checked the PTAB cases in which both law firms represent petitioners, as shown in Figs. 22 (Lawfirm A) and 23 (Lawfirm B). Specifically, when representing petitioners, Lawfirm A won 14% of the cases while Lawfirm B won 24% of the cases. Further, it has been increasingly difficult for a petitioner to have its petition instituted. That is to say, “Denied Institution” rate is another critical parameter to check performance. For Lawfirm A, 24% of the petitions were denied institution, while for Lawfirm B the denied institution rate is only 9%. In view of the above analysis, Lawfirm B, Samsung’s representing law firm, has had significantly better performance before PTAB than Lawfirm A.

                               

                                 
Lastly, it is worth noting that although big data can inform lawyers and judges of unconscious patterns in their behavior, it is not directly intended to render judgment on them, but rather it simply gives practitioners a shortcut to the insights years of working experience might lend them.


IV. Conclusion
This article shows merely a glimpse of the value big data can add in legal practice. Lex Machina can easily obtain insightful data analytics and the visualization thereof, both hard to obtain through the traditional legal research methods. Admittedly users cannot entirely rely on data analytics; nevertheless, such data analytics, complemented by the traditional legal research, allows a more informed user to make smarter decisions in
litigation.

* To further understand box plots for timing analysis, see https://law.lexmachina.com/help/boxplot-faq.

 

 

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