Patent suits settled 64% of the time 1991-2004, dropping only 4%, with the percent having been rather steady from the mid-1990s. 25% of cases are dismissed, a rise of 3% over the period 1991-2004. The one-in-ten cases reaching a decision remained fairly constant.

The slight rise in dismissals may be attributable to the appeals court regularly approving lower courts' summary judgments. The now-common use of claim construction Markman hearings (the Markman v. Westview Instruments S.C. ruling in 1996), and the weakening of the doctrine of equivalents in recent years via case law, somewhat lessen disputable facts, thus making decisions more often seemingly a matter of law, and hence subject to approvable summary judgment.

While there's been a lot of hand-wringing about patent quality, it doesn't show up in litigation outcomes. One explanation is the presumption of patent validity, and the high burden required to prove a patent invalid. But the real reason is more likely that shabby patents don't often get put on a docket, because a nag can't run the track. Litigation cost, especially the resource sink at law firms, particularly in contingency cases, is too great not to vet a patent, at least to a degree, before putting it on the race course of litigation. All the jive about junk patents doesn't factor into litigation statistics, because junk patents rarely enter the courthouse.

In an ironic twist, the public carping around patent quality has awakened many companies to the potential of monetizing their IP, which is fueling patent licensing companies with fodder. Patent monetizers, such as world-beater Acacia Technologies, and Intellectual Ventures, among many others, are increasingly sophisticated operations in assessing patent quality and value, and effective in enforcement. Effective enforcement as often as not means never having to put a matter before the court, because the terms for a licensing deal, and the information backing patent strength, can be persuasive. Still, many companies remain reluctant to open their wallet to what they perceive as patent extortion, regardless of the merits, without putting up some kind of fight. As the current trends continue, don't look for the litigation settlement statistics to change.