• Journal of Technology Innovation
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• v.20 no.3
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• pp.57-91
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• 2012

This paper investigates determinants of litigation success in the two distinctive types of patent litigations, ex-parte and inter-parte cases, which are brought in the process where a filed application becomes a valid patent right. We regress winning rates of patent applicants on the characteristics of firms, trials, patent lawyer, and patent itself, using a probit model with sample selections. The paper finds that the relative suit rate of a firm, time to be sued, changes of patent agents by applicants, and multiple agents among explanatory variables affect ex-parte reexamination and in-parte post-grant patent trials differently in the point of average marginal effects. These variables lower the probability of applicant's victory in the ex-parte cases, while they raise the probability in the inter-parte trials. However, the experience that agents represent applicants is a winning rate-increasing factor both in inter-parte and ex-parte reexamination, unexpectedly. This result cannot be applied to the entire domain of the variable, since sample selection effects are reflected in the result. The number of claim increases the winning probability of the applicant in the both types of patent litigations. This study has some limitations because it ignores the information on the legal person to which a patent agent belongs, and confined agent's experience to patent filing. We leave it future studies to investigate the effects of lawsuit experience of patent agent, and those of characteristics of the law firm to which individual patent lawyer is affiliated.