Medical Device Patent Damages and Success Rates

Investment in medical device patents may give the best bang for the buck according to a comprehensive study by PwC. The 2017 Patent Litigation Study provides valuable data collected over a twenty-year period.

Two key statistics stand out from the study when it comes to medical devices. First, of the top ten industries, the medical device industry has the highest median damage award. The 58 identified medical device decisions resulted in a median damage award of almost $20 million, followed closely by biotech/pharma litigations. Fig. 16 of the study shows the top ten industries in terms of median damage awards:

Second, the study also concludes that medical device patent holders have the highest success rate within the top ten industries over the period of 1997-2016. As shown in Fig. 17, medical devices have an approximately 40% success rate, well over the 33% overall success rate identified by the study. Some of this may be attributable to the fact that certain issues, such as whether the patent attempts to claim abstract ideas (See, Alice Corp. v. CLS Bank International) are uncommon in medical device litigations. Conversely, business/consumer services and software patent holders will likely have to wrestle with these issues to prevail at trial.

Taken together, these two figures indicate that medical device patents may present the best value when compared to other industries. Not only are medical device patent holders more likely to succeed at trial than others, but they also command higher damage awards. Such statistics may also motivate patent infringers to settle more quickly, knowing that medical device patent holders are often more successful than their counterparts in other industries.

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