Patexia Insight 73: Calculating Stakeholders’ Performance in ITC Section 337 Cases
Last week we explained how BigLaw is reshaping ITC Section 337 landscape by entering into this very specialized IP field (Patexia Insight 72). This week we analyze ITC Section 337 case outcomes over the last five years, and will examine each unique potential outcome as pertains to our goal of designing a system for measuring the performance of all stakeholders in ITC cases (i.e., respondents, complainants, law firms, attorneys, and judges).
From January 1, 2014 through December 1, 2019, a total of 308 ITC Section 337 cases were filed. Out of this number, a total of 212 cases have so far been terminated, while the rest remain in different phases and still pending.
As with our previous IP reports and analyses, and as we have gained more experience and received feedback from our valued community, our ranking methodologies and formulas are also continually tested, surveyed, and evolving with each report.
To measure the success and performance of all stakeholders in these cases, we sought and surveyed the advice and opinions of ITC attorneys, particularly for special situations where it seemed neither easy nor appropriate to declare a single outright “winner.” This helps us design the most accurate, consistent, fair, and unbiased methods for evaluating the performance of companies, attorneys, law firms, and judges.
Below we briefly describe the scoring rationale and methodology used for our latest ITC Intelligence Report, which will be released in early January. As you will see throughout this article, for this analysis, we heavily incorporated the valuable feedback provided by ITC attorneys that responded to our October ITC survey.
For the purpose of performance measurement, we only considered terminated cases (i.e., 212 ITC cases for the period of the study). However, not all of the terminated cases were related to violation. The following chart summarizes the types of terminated ITC Section 337 cases, for the 212 cases that terminated during the period of our study. We will focus only on the 196 violation cases.
As we know, a terminated ITC case may have many different outcomes for respondents, and may have different outcomes for different respondents within the same case. Therefore, rather than giving all respondents (and their attorneys) the same score for a single ITC case, these different respondent outcomes within a single case should ideally be accounted for in the scoring methodology, as we have endeavored to do here. Furthermore, some respondents may be terminated from the case for various reasons before adjudication of a 337 decision (e.g. Withdrawn, Settlement, Consent Order); others may remain in the case until a 337 decision is made (No Violation, Violation-Settlement, Violation-LEO/GEO/CDO); still others may default or never be served — any or all of which may merit consideration in the scoring.
As illustrated in the chart below, about 36 percent of all terminated ITC cases are settled. That is a little bit more than ⅓ of the cases.
As for settled cases, some details of the case are not explicitly available within the docket materials, for example confidential settlement terms or underlying legal strategies. And we also appreciate and completely agree with the opinions of many attorneys surveyed, that which party (or attorney/firm) has come out “ahead” in a terminated ITC case will be highly dependent on the specifics of that particular case (many details of which are simply not available from the public materials), and thus any scoring system will inevitably have some unavoidable imperfections given the limits of available case information.
Given these inherent limitations that are unfortunately impossible to completely overcome, our goal was to develop a scoring methodology that could be most consistently and fairly applied to all parties, given finite limits of available information, time, and resources. As such, we also strove to not unduly penalize (nor credit) participants where they may not have had direct bearing on a particular outcome, and/or where the relevant details or circumstances material to the outcome (and thus score) may be ambiguous or unknown, and to provide as much “partial credit” as possible to allow each participant the opportunity to achieve their highest possible score.
We clustered all terminated cases into several possible outcomes that we encountered. The following table summarizes all these possibilities, and how the point has been split between complainant and respondent for each case. “Dash” means the case was neither tallied nor scored for that participant. All justifications are below.
| Outcome | Complainant | Respondent | Comp. Atty/Firm | Resp. Atty/Firm |
|---|---|---|---|---|
| No Violation |
0 |
1 | 0 | 1 |
| Withdrawn | 0.25 | 0.75 | 0.25 | 0.75 |
| Settlement | 0.5 | 0.5 | 0.5 | 0.5 |
| Violation, Settlement | 0.65 | 0.35 | 0.65 | 0.35 |
| Consent Order | 0.75 | 0.25 | 0.75 | 0.25 |
| Consent Order, Violation (staff) | 1 | 0 | 1 | 0 |
| Violation, LEO/GEO/CDO | 1 | 0 | 1 | 0 |
| Default, Summary Determination | 1 | 0 | - | - |
| Not Served | - | - | - | - |
| No Investigation | - | - | - | - |
Complainants and Respondents
Complainants and respondents were scored for various ITC outcomes, as shown in the above table. Withdrawn complaints were scored 0.25/0.75 for complainants/respondents respectively, reflecting survey opinions that while in most cases withdrawals likely reflect an advantage to the respondent, about 25% of the survey respondents noted that a withdrawal may sometimes reflect advantage to the complainant (e.g. if the case will be re-filed, companion litigation, etc). A no violation finding was scored 1 for the respondent, given their successful defense. Violation and accompanying limited or general exclusion or cease and desist orders (LEO, GEO, CDO respectively), were scored 1 for the complainant, on the merits of the 337 finding and the exclusionary remedies sought. Likewise, defaults in the analyzed cases were typically associated with a summary violation, thus were also scored 1/0 for the complainants/respondents, respectively.
For settlements prior to adjudication of a 337 decision, since settlement agreement terms are unavailable, there seems no viable option other than to consider them equal wins for both parties, with each receiving 0.5 points. Settlements following a 337 violation finding (Violation, Settlement), in contrast, were deemed primarily a win for the complainant due to the 337 violation finding, but still of some benefit to the respondent given the settlement rather than LEO/GEO/CDO, hence scored 0.65/0.35 respectively. This scoring for the Violation, Settlement category also reflected an approximate weighting of responding attorneys’ differing opinions as to whether these decisions were more a win for the complainant (38%) or equal win for both parties (54%), and the need to settle on a scoring metric that could be most fairly and consistently applied for all participants (companies, and attorneys/firms) without knowing settlement terms.
Consent orders were also scored 0.75/0.25 because we, and 74% of attorneys responding to our survey, felt that they were primarily a win for the complainant over the respondent (versus 23% of respondents feeling they were an equal win for both parties) — and because we felt the complainant should receive the majority of the point for consent orders, yet without weighting them the equivalent of a 337 violation finding on the merits (i.e. “1”). If consent orders with a likely finding of 337 violation in a Commission Investigative Staff's Pre-Hearing Brief were identified (Consent Order, Violation (staff)), these were scored 1/0 for complainant/respondent. Not served or no (337) investigation launched, were not included in any parties’ scores. Blank entries (dashes) in any columns/rows in the table above indicates the respective participant was not scored for that particular outcome, as justified here and in the following sections for Attorneys and Firms, and Judges.
Attorneys and Firms
Because attorneys and firms are typically closely involved in the cases on behalf of their clients, and often play a substantial role in the case’s outcome, they were scored exactly the same as their client (complainant or respondent), with the exception of defaults. The rationale for omitting defaults from attorneys’ and firms’ scores – and as our survey results indicated – is that in some cases attorneys/firms may play no role in the decision to default, whereas in other cases they may have a role in defaults, yet it is typically difficult to know from public records which situation applies for any given case. Therefore we felt that neither unfairly penalizing (nor crediting) attorneys/firms for defaults was the only solution that could be consistently and fairly applied in all cases.
Judges
When a company or attorney is looking at a judge’s record in 337 cases, we surmise that the question they are most interested in having answered is this: “When a judge adjudicates a decision on a 337 violation, how are they most likely to decide – in favor of the complainant (violation), or in favor of the respondent (no violation)?” For all other outcomes shown in the table, the judge presumably has little direct role, and therefore to include these other outcomes in judges’ scores would simply “dilute” their scores, i.e. make their scores less reflective of how they actually decide 337 cases. Therefore, judges were only scored where a 337 finding was given, either 0 for no violation, or 1 for violation. Thus the closer a judge’s score to 1, the more often they found for the complainant (violation).
The full ITC Intelligence Report will be released in early January, and will cover about 400 ITC law firms, the 1,000 most active attorneys, and the 1,000 most active complainants and respondents. The complete performance metrics of all companies (respondents and complainants), law firms, attorneys, and judges, and their respective rankings, will be covered in the report. The report provides valuable insights and important data points for corporations looking to hire their next ITC counsel.
In the following weeks, we plan to write more about our ITC performance and activity metrics, and will analyze the activity of some of the top law firms and companies. Stay tuned!