50% of litigated patents are invalidated - academic research
"Journal of Economic Perspectives—Volume 19, Number 2— Probabilistic Patents"
Mark A. Lemley is the William H. Neukom Professor of Law, Stanford Law School,
Stanford, California, and of counsel, Keker & Van Nest LLP, San Francisco, California.
Carl Shapiro is the Transamerica Professor of Business Strategy, Haas School of Business, and
Professor of Economics, University of California at Berkeley, Berkeley, California."
"When a patent holder asserts its patent against an alleged infringer, the patent holder is rolling the dice. If the patent is found invalid, the property right will have evaporated. The risk that a patent will be declared invalid is substantial. Roughly half of all litigated patents are found to be invalid, including some of great commercial significance."
"While the examination process at the Patent and Trademark Office takes nearly three years on average (Allison and Lemley, 2000), a patent examiner spends only 18 hours per application on average during those three years reading the application, searching for and reading prior art, comparing the prior art to the application, writing one or more provisional rejections, reviewing responses and amendments, often conducting an interview with the applicant’s attorney and writing a notice of allowance (Lemley, 2001; FTC, 2003)."
"Further, legal scholars who have studied the patent prosecution process have pointed to structural problems that encourage the PTO to grant patents of doubtful quality, including high examiner turnover
and an incentive system that rewards examiners for allowing but not for rejecting applications (Merges, 1999; Thomas, 2001). As a result, the overwhelming majority of patent applications in the United States, perhaps 85 percent, ultimately result in an issued patent—far more than in Europe and Japan (Quillen, Webster and Eichman, 2003; NAS, 2004).4"
"When patents are litigated, substantial uncertainty arises. Defendants in patent cases typically claim that the patent is invalid, usually based on the existence of prior art not found by the Patent and Trademark Office. However, patents are afforded a presumption of validity; to have a patent declared invalid requires “clear and convincing evidence.” Defendants also usually claim that they do not infringe
the patent, even if it is valid. Of patents litigated to a final determination (appeal, trial, or summary judgment), 46 percent are held invalid (Allison and Lemley, 1998; see also Moore, 2000)."
I think QCOM's odds are very very good here. Especially with the thousands of pages of prior art QCOM has conjured up (including some that it provided to PV in 1999 and PV chose not to give to the PTO as required), I'd say they have a 75-80% chance of invalidation, and the then if valid they likely have a really good chance (say 75%) of non-infringement. And even if they lose the whole shooting match a reasonable royalty of 2 cents on 2 Billion chips is $40 million, less costs less lawyer charges.
IMHO it's like betting on a single Roulette number with a 300-number wheel.
Where are the "...thousands of pages of prior art ..." that Q has supposedly 'conjured up' ? In the Counterclaim, Q only identified 4 patents as prior art invalidating PV's patents. I believe all of them were referenced in the PV patent application. Since the Counterclaim, I have found no reference by Qualcomm's attorneys to any other specific prior art - although there has been plenty of general, non-specific claims that there is "prior art" that invalidates the patents.
On another subject, there has been much moaning and groaning about Parkervision's lack of commercial success over the years. I am new to this stock - having only gotten in last March. However, it has occurred to me a reason why other companies have not picked up Parkervision's technology is because they may have found that Qualcomm offered the same thing. Why would someone want to deal with a tiny undercapitalized company like PV when they could do business with a giant, more reliable company such as Qualcomm. Of course, the products from Q would have infringed on PV's patents. Just suggesting....
According to Jeff Parker his products were/are superior to anything offered by competitors specifically including QCOM so if QCOM stole the technology they didn't seem to accomplish as much with it as PRKR, at least according to Jeff. So why were customers adopting an inferior approach instead of PRKR's superior approach--interesting question.