Because of the tendency for clients and lawyers to overestimate the likely return from the cases they are involved with, it is worth remembering that only a small fraction of patent cases result in a damages award — at all. Perhaps most telling is Figure 52 on pg. 30 of the report, which shows that in 2017, there were more awards of attorney’s fees in patent cases than reasonable royalty awards. At minimum, statistics like these suggest that we must always keep in mind that patent litigation bears financial risk on all sides, especially in the current climate where the prevailing party is keen to extract maximum punishment from the loser.

Second, and continuing with the idea that having as much information on potential remedies is desirable for IP lawyers and their clients, the dataset on injunctions in the 2017 Lex Machina report was eye-opening. There is no doubt that the availability of permanent injunctions in patent cases was severely curtailed by the Supreme Court’s eBay decision a decade or so ago. As a result, the focus on injunctions, particularly for patent lawyers whose practices are heavily driven by non-practicing entity lawsuits, has waned considerably.

At the same time, considering the market impact of an injunction and their continued importance in competitor cases, it can be surprising just how little attention injunctions receive. The 2017 data, however, helps suggest why. In short, going for a contested temporary injunction is a very risky bet, with over 75% denied. In contrast, securing a permanent injunction — presumably after a win on the merits — is an almost automatic result, suggesting rewards for patent owners who successfully stay the course in competitor cases. So keep in mind that going for a preliminary injunction can be an expensive and unsuccessful detour, while the opposite is true for patent cases that ultimately resolve in the patentee’s favor.

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