When Foreigners Infringe Patents: An Empirical Look at the Involvement of Foreign Defendants in Patent Litigation in the U.S

This article presents results from a multiple-year project concerned with the involvement of foreign (non-U.S.) entities in U.S. patent litigation. A comparison of data from 2004 and 2009 that cover 5,407 patent cases filed in U.S. federal district courts in those two years evidences an increase in the number of cases involving foreign defendants, and thus an increasing potential for cross-border enforcement problems. With this basic finding, the research supports the proposition advanced by a number of intellectual property scholars in the U.S. and abroad that rules need to be established to facilitate a smooth process for recognition and enforcement of foreign judgments in intellectual property cases. The research fills a significant gap in the existing literature, which has relied so far on only isolated individual cases to illustrate cross-border enforcement problems; comprehensive empirical evidence has not existed to show a growing need for improved rules for recognition and enforcement. In addition to providing missing evidence, this article uses data concerning the involvement of foreign defendants to reveal remarkable facts about the changing landscape of patent litigation in the U.S. † Associate Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas. The author would like to thank Professor Mark Lemley and Professor Paul Goldstein of Stanford Law School, Professor Mary LaFrance of William S. Boyd School of Law, Professor Brenda Simon of Thomas Jefferson School of Law, and Gary A. Trimble for their comments and support. She appreciates the assistance provided to her by Joshua Walker and the staff of the Stanford IP Litigation Clearinghouse, later Lex Machina, and by David McClure of the Wiener-Rogers Law Library at the William S. Boyd School of Law. Additional thanks go to the participants at the IP Scholars Conferences in 2009 and 2010. The underlying research represents a multiple-year project that was funded partially by a summer research stipend from the William S. Boyd School of Law, University of Nevada, Las Vegas, and by a fellowship grant from the Ewing Marion Kauffman Foundation. The contents of this publication are solely the responsibility of the Grantee. For additional findings of the research see MARKETA TRIMBLE, GLOBAL PATENTS: LIMITS OF TRANSNATIONAL ENFORCEMENT (forthcoming 2012). 09 TRIMBLE 5/17/2011 12:49:28 AM 500 SANTA CLARA COMPUTER & HIGH TECH. L.J. [Vol. 27