Patenting in Nevada (Part 3)

By Marketa Trimble, Associate Professor of Law 

Click on figures to enlarge them

The number of patents granted in a given period for inventions originating in a particular territory is an inaccurate proxy for the innovative activity that occurs in the period and the territory. Patents on inventions considered novel, non-obvious, and useful capture only some of ongoing innovation, and therefore the number of patents granted is only one of several indicators of innovative activity. Fluctuations in the number of patents granted may be associated with a number of factors, including institutional and procedural changes in patent applicants’ organizations and in the Patent Office, and also changes in attitudes in a particular industry toward the protection of inventions by patents. The availability of highly skilled patent attorneys and patent agents who can draft and prosecute patent applications successfully is yet another factor that can affect the number of patents granted.

Keeping the above caveat in mind, we can note that the numbers of U.S. patents granted in 2010 – 2013 on inventions by Nevada inventors indicate a positive trend in innovation in Nevada. (Throughout this post, the terms “patents” and “inventions” are used to refer to utility and design patents and to inventions and designs, and the statistics are for calendar years, not fiscal years.) While Figure 1 shows a slight decrease in the number of patents granted on applications listing Nevada assignees in 2011 and 2012 (when the numbers of such patents granted were in the 1,300s), Figure 1 also shows that in 2013 the number of such patents granted that year jumped to 1,691. Development in Nevada is unequivocally positive in Figure 2, which shows a gradual rise in the number of patents granted on inventions for which at least one inventor was a Nevada resident; the number increased from 794 patents granted in 2010 to 1265 patents granted in 2013.

Figure 3 compares the development of the numbers of all U.S. patents granted in 2010 – 2013 with the development of the numbers of U.S. patents granted on applications listing Nevada assignees and Nevada inventors. The number of all U.S. patents granted in 2013 was 24% higher than it was in 2010; the number of U.S. patents granted in 2013 exceeded 300,000. The number of U.S. patents granted on applications listing Nevada assignees in 2013 was 12% higher than it was in 2010, but there was a slight dip in the numbers in 2011 and 2012. However, patents on applications that named at least one Nevada inventor have been growing steadily from 2010 to 2013, and the number of such patents granted in 2013 was 59% higher than it was in 2010.

The numbers of patents granted could have risen in Nevada because of an increase in Nevada’s population or growth in Nevada’s economy; to find out whether the rise might be attributable to an increase in the intensity of innovation, it is useful to look at the development of the numbers of patents per million Nevada residents and per $ billion Nevada GDP. Figures 4 and 5 show that the numbers of patents on inventions by Nevada inventors, per million Nevada residents and per $ billion Nevada GDP, have been growing, and that they have been growing faster than the numbers of patents on inventions by all U.S. inventors, per million U.S. residents and per $ billion U.S. GDP. In fact, Figure 5 shows that more patents per $ billion Nevada GDP were granted on inventions by Nevada inventors in 2012 and 2013 than were granted on inventions by U.S. inventors per $ billion U.S. GDP in those years.

The increase in the number of patents on inventions by Nevada inventors is confirmed by Figures 6 and 7, which show, per million residents and per $ billion GDP, the number of patents on applications in which a U.S. and a Nevada resident were the first-named inventors. The state or country of residence of the first-named inventor is the criterion that the USPTO uses, for statistical purposes, to define the geographical origin of a patent. Using this definition, Figures 6 and 7 show an increase in the numbers of patents granted on inventions by Nevada inventors, per million Nevada residents and per $ billion Nevada GDP. The numbers of patents granted in 2012 and 2013 on inventions by Nevada residents per million Nevada residents and per $ billion Nevada GDP in Figure 7 do not exceed the U.S.-wide numbers as they do in Figure 5; nevertheless, Figures 4 – 7 all suggest possible intensification of innovation in Nevada.

As noted above, number of patents granted is not the only indicator of innovative activity, and might not even be an accurate predictor of economic development. Much more than patenting must happen to propel economic growth; lawyers who can provide high-quality legal advice and sensible business perspectives are indispensable for the success of innovation. Preparing lawyers who will help sustain and promote innovation in Nevada is one of the Boyd Law School’s most important missions.

The data in Figures 1-7 are from the USPTO Calendar Year Patent Statistics and from data collected with the use of the USPTO Search for Patents.

For previous installments of this blog post chain see Part 1 and Part 2.

Professor Trimble welcomes any citing or quoting of this blog post or reposting of the entire blog post and/or the figures; however, she requests that you cite the author and title of the blog post and include a link to this page.

Patent Litigation in Nevada (Part 4)

By Marketa Trimble, Associate Professor of Law 

This blog post follows my earlier posts about patent litigation in Nevada (here, here, and here) and introduces the judges and law firms who have been instrumental in patent litigation in the U.S. District Court for the District of Nevada in patent cases that were filed in 2010-2013.

Figure 1 shows the judges of the District Court who were assigned patent cases filed in 2010-2013 and the number of patent cases in their dockets. Judge Gloria Maria Navarro (whose chambers are in Las Vegas) is at the top of the chart; since her appointment in 2010 her caseload has included 33 patent cases that were filed in 2010-2013. Judge Robert Clive Jones (appointed in 2003, chambers in Reno) and Judge Miranda Mai Du (appointed in 2012, chambers in Reno) had the second-largest patent caseloads; each of their dockets included 25 patent cases that were filed in 2010-2013. Judges Navarro, Jones and Du, and Judge Philip M. Pro (appointed in 1987, chambers in Las Vegas) have been the designated Patent Pilot Program judges for the District Court since the Court joined the Program in 2011.

The Patent Pilot Program is designed to enhance the patent law expertise of judges participating in the Program by allowing them to hear more patent cases than they would otherwise hear without the Program. District Court judges who have not been designated Program judges may (but need not) decline to hear patent cases that have been assigned to them (cases are assigned to judges randomly); declined patent cases are then randomly assigned to the Program judges. The District Court is one of only 14 U.S. district courts that have been selected to participate in the Program; the courts selected include the major patent litigation federal district courts, such as the U.S. District Courts for the Eastern District of Texas, the Central District of California, and the Northern District of California.

Figure 2 shows the law firms that represented clients in patent cases that were filed in the U.S. District Court for the District of Nevada in 2010-2013; there were 167 different law firms that represented clients in the 133 patent cases that were filed in the District Court during that period. For visualization purposes Figure 2 includes data only for the 29 firms that represented clients in four or more cases during the period.

Firms that most often represented clients in patent cases filed in Nevada in 2010-2013 were, not surprisingly, law firms with offices in Nevada. The top five firms all had Nevada offices: Lewis and Roca LLP (since September 1, 2013, Lewis Roca Rothgerber LLP; offices in Las Vegas and Reno), Watson Rounds (Las Vegas and Reno), McDonald Carano Wilson LLP (Las Vegas and Reno), Lionel Sawyer & Collins (Las Vegas, Reno, and Carson City), and Gordon Silver (Las Vegas and Reno). Of the law firms without offices in Nevada, the firms that most often represented clients in patent cases were Finnegan, Henderson, Farabow, Garrett & Dunner, LLP; Kenyon and Kenyon LLP; Knobbe, Martens, Olson & Bear, LLP; and Bartlit Beck Herman Palenchar & Scott LLP.

The charts in this blog post were prepared based on data available in the Lex Machina database as of January 2014. 

Professor Trimble welcomes any citing or quoting of this blog post or reposting of the entire blog post and/or the figures; however, she requests that you cite the author and title of the blog post and include a link to this page.

Patent Litigation in Nevada (Part 3)

By Marketa Trimble, Associate Professor of Law

In my last blog post (here) I presented general data about patent cases filed in the U.S. District Court for the District of Nevada. In this post I will present data describing parties that were or are still involved in patent cases filed in the District Court in 2010-2013.

Because of the current nationwide interest in the “patent troll” phenomenon, which even featured in President Obama’s State of the Union Address last week (although disguised under the more general “innovation, not costly, needless litigation” theme), it is appropriate to begin an analysis of parties through the prism of this phenomenon. Patent trolls are persons or entities that own one or multiple patents and enforce their patent rights aggressively, sometimes using objectionable enforcement practices. Patent trolls are what “non-practicing entities” are often regarded as, because these entities own patents but do not manufacture any products or provide any services (other than the enforcement of patent rights). The latest term used to describe these kinds of entities is “patent-assertion entities.” In fact, no term captures well what the phenomenon represents, which remains subject to disagreements among commentators. Generally, critics accuse patent trolls of burdening “practicing” entities and the U.S. court system by filing suits against multiple defendants and enforcing patents of questionable validity. Patent troll defenders point out that trolls serve some positive functions in the patent landscape, that the U.S. patent system does not require patent owners to practice their own patents, and that the system does allow patent owners to enforce their own patents. Nevertheless, the phenomenon is a burden on the economy, and experts, industry representatives, the White House, and Congress are seeking ways to limit patent troll activity.

One way to search for patent trolls is to focus on “repeat plaintiffs” – parties that have filed multiple patent cases. For example, I looked for plaintiffs who filed patent cases in Nevada in 2010-2013 and were involved as plaintiffs in ten or more patent cases filed in any U.S. district court in 2000-2013. Based on these criteria I identified 22 plaintiffs; they filed 52 patent cases in Nevada in 2010-2013. Figure 1 shows that in 2010-2013 these repeat plaintiffs filed between 10 and 18 cases in Nevada each year, which was 50%, 33%, 31%, and 42%, respectively, of patent cases filed in Nevada in those years.

It would be a mistake to conclude that all repeat plaintiffs in Nevada are “patent trolls.” Out of the 22 different repeat plaintiffs, 16 (73%) were practicing entities that typically are not considered to be patent trolls: seven were pharmaceutical companies and nine were other practicing entities, such as Nike, Inc., Koninklijke Philips N.V., and Robert Bosch LLC. Six out of the 22 repeat plaintiffs do appear to fit some definition of patent troll – they seem to be non-practicing entities that specialize in patent enforcement. These six plaintiffs filed a total of nine lawsuits in Nevada in 2010-2013, meaning 7% of all patent cases filed in Nevada during that period.

Repeat plaintiffs are not always patent trolls, and patent trolls are not always repeat plaintiffs; new patent trolls may emerge that have not yet filed many lawsuits, and old patent trolls may have changed their names or spun off different subsidiaries. Depending on the definition of patent troll, patent trolls filed between 20 and 27 lawsuits in Nevada in 2010-2013, which is 15-20% of all patent suits filed in Nevada during that period. These percentages are substantially lower than the nationwide percentages suggested by various empirical studies; for example, according to some studies, in 2012 “patent assertion” or “non-practicing entities” filed between 50% (here) and 62% (here) of patent cases in U.S. district courts (cf. 25% in Nevada in 2012).

As for the domicile of parties that are involved in patent litigation in Nevada, Figure 2 shows that not all cases filed in the U.S. District Court for the District of Nevada involve parties that reside, are incorporated, or have their principal place of business in Nevada. In 2010, 50% of cases filed that year did not involve any parties from Nevada, and only 25% of cases were filed against a Nevada party (including cases in which multiple parties were sued and a Nevada party was one of them). Of the cases filed in 2013, 84% involved Nevada parties, and 30% were filed against a Nevada party or multiple parties that included a Nevada party.

Figure 3 shows foreign-country domiciles. For the purposes of the statistics reported here, each case was coded for the domicile of the parties involved in the case; each case was coded only once for each country represented among plaintiffs and among defendants. Green columns represent countries’ appearances on the plaintiffs’ side and red columns represent countries’ appearances on the defendants’ side. Parties from 18 foreign countries were involved in patent cases filed in Nevada in 2010-2013. Most of the cases (72%) had U.S. parties involved on both sides of the dispute—either U.S. parties only or U.S. parties together with foreign parties. In 26% of the cases one side of the dispute involved only foreign parties, and in two cases there were only foreign parties on both sides of the dispute. Of course it is important to note that the statistics in Figure 3 do not provide a perfectly accurate picture of the global nature of patent litigation because some parties with a global presence were acting through their U.S. subsidiaries.

The charts in this blog post were prepared based on data available in the Lex Machina database as of January 2014. 

Professor Trimble welcomes any citing or quoting of this blog post or reposting of the entire blog post and/or the figures; however, she requests that you cite the author and title of the blog post and include a link to this page.

Patent Litigation in Nevada (Part 2)

By Marketa Trimble, Associate Professor of Law

In 2014 I will follow my earlier blog posts about patenting in Nevada (here and here) and patent litigation in Nevada (here) and discuss detailed statistics about patent litigation before the U.S. District Court for the District of Nevada. I derived the data used in this and the following blog posts from the Lex Machina database (here), and the statistics that I compiled from the data reflect information available in the database as of January 2014.

Figure 1 compares the numbers of patent cases filed in the U.S. District Court for the District of Nevada in 2000-2013 (gray columns) with the numbers of patent cases filed in those years in U.S. district courts U.S.-wide, including in Nevada (orange columns, in hundreds of cases).

In 2013 the number of patent cases filed continued to rise after the growth in the numbers experienced in 2009-2012, and reached 6,112 cases filed U.S.-wide in 2013. This number was an increase of 13% from 2012 (when 5,420 cases were filed), an increase of 73% from 2011 (3,529 cases), and an increase of 125% from 2010 (2,714 cases). In other words, there were more than twice as many patent cases filed in the United States in 2013 than were filed in 2010.

The development in the numbers of patent lawsuits filed in Nevada was different although the numbers grew as well; the 2013 Nevada number (43 cases) was an increase of 34% from 2012 (when 32 cases were filed), an increase of 43% from 2011 (30 cases), and an increase of 54% from 2010 (28 cases). As Figure 1 shows, while the U.S.-wide numbers jumped substantially from 2011 to 2012, the Nevada numbers grew substantially from 2009 to 2010 (from 15 to 28 cases) and from 2012 to 2013 (from 32 to 43 cases).

Figure 2 shows the types of claims that were included in the patent lawsuits filed in the U.S. District Court for the District of Nevada in 2010-2013. Most of the cases were brought by patent holders who claimed that one or more of their U.S. patents were infringed (blue columns). A smaller number of cases were filed by pharmaceutical companies as actions concerning new drug applications by producers of generic versions of patented drugs (“NDA/ANDA” actions; red columns). An even smaller number of cases were filed by persons or entities asking the court to declare that a patent was not valid and/or that the persons and entities did not infringe the patent (green columns). Finally, one case included a claim of a false patent marking – a claim that the defendant had provided incorrect patent information about its product (purple column).

The data in Figure 2 are rather typical for the U.S. patent litigation landscape, although the numbers of NDA/ANDA actions might be surprising because Nevada is not perceived as a center of the pharmaceutical industry. In 2012 NDA/ANDA actions represented 16% of patent cases filed in Nevada, while this type of action represented, for example, only 5% of all patent suits filed in 2012 in the U.S. District Court for the District of Delaware. However, it is important to remember that the percentage in Nevada translates into only a handful of cases (compared to 51 cases in Delaware). In 2013, four out of six NDA/ANDA actions filed in Nevada that year were filed i.a. against Watson Laboratories, Inc., which is a Nevada corporation and a subsidiary of Watson Pharmaceuticals, Inc. (now Actavis, Inc.) with its global headquarters in Ireland. Note that plaintiffs do not have to file patent lawsuits where defendants reside, are incorporated, or have their principal place of business, and one of my upcoming blog posts will analyze the origins of defendants who have been sued in Nevada.

Figure 3 confirms another general trend in the patent litigation landscape – that most patent cases settle (see, e.g., here). Frequently they do not enter the trial phase and settle either after the claim construction hearing (in which the meaning of a patent is clarified) or even earlier. Figure 3 shows that in Nevada the typical types of terminations of patent cases that were filed in 2010-2013 (of the cases that were terminated by January 2014) were voluntary dismissals by the plaintiff or stipulated dismissals. By January 2014, 96% of patent cases filed in Nevada in 2010 were terminated, 67% of cases filed in 2011, 63% of cases filed in 2012, and 40% of cases filed in 2013. 

The charts in this blog post were prepared based on data available in the Lex Machina database as of January 2014. 

Professor Trimble welcomes any citing or quoting of this blog post or reposting of the entire blog post and/or the figures; however, she requests that you cite the author and title of the blog post and include a link to this page.

Patent Litigation in Nevada (Part 1)

By Marketa Trimble, Associate Professor of Law

In two recent blog posts I discussed patenting in Nevada – trends in the numbers of patents granted for inventions by Nevada inventors or by Nevada assignees (see here and here). In this and upcoming posts I will provide data on patent litigation in Nevada.

Figure 1 shows the numbers of all patent cases filed in the U.S. District Court for the District of Nevada in 2000-2012. In this period the numbers of patent cases filed each year oscillated between 15 cases (filed in 2000) and 35 cases (filed in 2006). In 2012, 32 patent cases were filed in the Court.

Click on the charts to view larger versions.

The development in Nevada was spared the extreme spike in the numbers of cases that the U.S. patent litigation landscape experienced in 2012 when 5,421 patent cases were filed in all U.S. federal district courts. Figure 2 illustrates the sudden increase in the number of U.S. patent cases, which climbed in the past three years from 2,711 in 2010 and 3,533 in 2011 to 5,421 in 2012.

The spike in the number of patent cases filed in the United States in 2012 has been blamed on the activity of “patent trolls” – entities, also called “non-practicing entities” or “patent assertion entities,” that use questionable practices to enforce patents that they often did not obtain on their own inventions or their employees’ inventions but that the entities purchased from third parties. Some sources estimate that “patent trolls” filed as many as 62% of all patent cases in the United States in 2012 (see here). While the term “patent troll” has been used for several years, the phenomenon of entities accumulating patents on inventions invented by others and engaging in questionable enforcement practices has existed for decades. However, the prominence of “patent troll”-filed lawsuits in 2012 was unprecedented and generated a wave of intense interest in the problem among academics, research institutions, industry groups, Congress, and the White House (see, e.g., an article about the “anti-patent troll” bills before Congress here, a June 2013 White House report here, and an August 2013 CRS Report here).

It is difficult to create precise statistics on “patent troll” activities because opinions tend to differ about which persons and entities should be labeled as “patent trolls.” Based on the opinions of various commentators about the nature of the activities of some of the plaintiffs filing patent suits in Nevada, Nevada has also been affected by “patent troll” activity; however, the effects in Nevada appear to be less severe than in the United States overall. In 2012, the year which has been considered so far as the peak of “patent troll” activity in the United States, four out of the 32 patent cases filed in the U.S. District Court for the District of Nevada were filed by entities that have been referred to by some commentators as “patent trolls.” In 2011, out of a total of 30 cases, five cases were filed in Nevada by entities referred to by some commentators as “patent trolls.” Of course, these numbers are only estimates; as has been pointed out, disagreements exist as to when the designation of “patent troll” is warranted.

The statistics for this post were derived from data provided by LexMachina, Inc.

Patenting in Nevada (Part 2)

By Marketa Trimble, Associate Professor of Law

In my blog post last week about Patenting in Nevada (here) I reported statistics showing the steep growth in the numbers of utility and design patents (see definitions of the two types of patents here) granted for inventions by Nevada inventors or on applications by Nevada assignees. This post will put the Nevada numbers in the larger U.S. context.

Click on the chart to view a larger version.

The rapid growth in 1976-2012 in the numbers of utility and design patents granted for inventions by Nevada inventors or on applications by Nevada assignees shown in the previous post (here) is illustrated in Figure 1 by blue and green trend lines, while the red line follows the trend in the growth of all U.S. utility and design patents granted in the same period (in thousands of U.S. utility and design patents). The comparison of the trend lines in Figure 1 shows that the trend in the growth of the numbers of utility and design patents granted for inventions by Nevada inventors or on applications by Nevada assignees was much steeper than the overall trend in the growth of all U.S. utility and design patents. In 2012 about 13 times more utility and design patents were granted than in 1976 for inventions invented by or co-invented by at least one Nevada inventor (from 87 in 1976 to 1,135 in 2012), and about 66 times more utility and design patents were granted than in 1976 on applications owned by Nevada assignees at the time of the publication of the applications (from 20 in 1976 to 1,317 in 2012). For all U.S. utility and design patents about 3.7 times more utility and design patents were granted in 2012 than in 1976.

Click on the chart to view a larger version.

The positive trend in the numbers of utility and design patents granted for inventions by Nevada inventors or on applications by Nevada assignees evidences the dramatic increase in the absolute numbers of such patents in 1976-2012. However, it is important to view the numbers in the context of the overall growth that Nevada experienced in the past two decades in population and economy.

Figure 2 shows that when calculating utility patents per million inhabitants, the trend in the growth of the numbers of Nevada utility patents granted in 1992-2012 followed the overall U.S. trend but that the Nevada numbers of utility patents granted per million Nevada inhabitants were consistently lower than the U.S. national numbers. Figure 2 focuses on utility patents that are designated by the USPTO as having a Nevada origin, meaning utility patents that had a Nevada inventor listed on the patent application as the only inventor or as the first co-inventor. The number of Nevada utility patents per million Nevada inhabitants is compared to the number of U.S. utility patents (U.S. inventor only or the U.S. co-inventor listed first) per million U.S. inhabitants. In 2012, about 273 utility patents were granted per million Nevada inhabitants on applications in which a Nevada inventor was listed as the only inventor or the first co-inventor; in the same year, about 386 utility patents were granted per million U.S. inhabitants on applications in which a U.S. inventor (from any U.S. state or territory, including Nevada) was listed as the only inventor or the first co-inventor.

Click on the chart to view a larger version.

Figure 3 shows that even when the numbers of utility patents are calculated per billion dollar GDP, the trend in the numbers of Nevada utility patents followed the national trend in 1997-2012 but that the numbers of utility patents granted per billion dollar Nevada GDP were also consistently lower than the U.S. national numbers. In 2012, about 5.6 utility patents were granted per billion dollar Nevada GDP on applications in which a Nevada inventor was listed as the only inventor or the first co-inventor; the same year, about 9.3 utility patents were granted per billion dollar U.S. GDP on applications in which a U.S. inventor (from any U.S. state or territory, including Nevada) was listed as the only inventor or the first co-inventor.

While Nevada should be proud of its steep growth in the absolute numbers of utility and design patents granted on applications by at least one Nevada inventor or Nevada assignee (see Figure 1 above and figures in the previous post here), it lags behind the nation when its numbers of utility patents granted on inventions by local inventors per million inhabitants and per billion dollar GDP are compared to the per million inhabitant and per billion dollar GDP U.S. national numbers.

The statistics for this post were derived from the following sources:
USPTO Patent Full-Text and Image Database
Calendar Year Patent Statistics
Historical National Population Estimates (July 1, 1900 to July 1, 1999)
U.S. Census Bureau, Population
Economic Research, Federal Reserve Bank of St. Louis

Patenting in Nevada (Part 1)

By Marketa Trimble, Associate Professor of Law

Last year on the UNLV Law Blog I presented statistics concerning copyright litigation in the U.S. District Court for the District of Nevada (here and here); this year I will look at patents and patent litigation in Nevada.

In 2012 the attention on copyright litigation in Nevada arose from a series of copyright infringement cases filed by Righthaven LLC; this year patent protection is the subject of a nationwide public debate as a result of the culmination of the problems with “patent trolls” – entities, sometimes referred to as “non-practicing entities” or “patent assertion entities,” whose predatory patent enforcement practices have burdened U.S. businesses for a number of years (see the June 2013 White House Report “Patent Assertion and U.S. Innovation” here).

The U.S. patent system also deserves attention this year for two other reasons: First, in March the long-discussed reform of the U.S. patent system became fully operational; among other changes, the reform changed the system of priority so that a patent is now granted to the inventor who first files a patent application in the U.S. Patent Office (previously, the first inventor would be granted a patent). Second, statistics suggest the beginning of a new era in which U.S. inventive activity will be exposed to increased competition from other countries. In 2008-2012, for the first time in U.S. history, more U.S. patents were granted in single calendar years on applications of non-U.S. inventors than on applications of U.S. inventors (based on the first inventor listed on an application; see the USPTO statistics here).

Patenting in Nevada has undergone tremendous growth in the past 40 years. Figures 1 and 2 below show the rapidly increasing numbers in 1976 – 2012 of U.S. utility and design patents granted for inventions by inventors and assignees from Nevada. Figure 1 shows the numbers of patents granted for inventions that were invented by a Nevada inventor or a group of inventors that included at least one inventor from Nevada. The numbers of patents granted for inventions by Nevada inventors grew from 87 in 1976 to 1,135 in 2012. Figure 2 shows the numbers of patents granted on applications by Nevada assignees – individuals or entities in Nevada who owned a patent application at the time of its publication; those numbers grew from only 20 in 1976 to 1,317 in 2012. 

Click on the charts to view larger versions.

The steep growth in the absolute numbers of patents granted for inventions by Nevada inventors and on applications by Nevada assignees implies a dramatically increased need for legal services in Nevada in the area of patent law. Graduates of the William S. Boyd School of Law are among the practitioners who provide such services in Nevada, and among the many talented students who enroll in Boyd are numerous prospective patent practitioners. In addition to students interested in transactional and litigation work in the intellectual property area, Boyd also has students interested in patent prosecution work – in the last five years Boyd enrolled five to eight students each year with engineering or science bachelor degrees that will likely make the students eligible to sit for the Patent Bar (the USPTO Examination for Registration to Practice in Patent Cases); some of the students have taken the Patent Bar during their law studies at Boyd. The engineering and science undergraduate majors represented among Boyd students in the past five years have been, for example, civil engineering, mechanical engineering, electrical engineering, computer engineering, chemistry, and biology. There have also been Boyd students with engineering and science graduate degrees; for example a doctorate in mechanical engineering and a doctorate in toxicology.

My next blog will place the Nevada patent statistics in a nationwide context by comparing national numbers to the numbers of utility and design patents granted for inventions by Nevada inventors or on applications by Nevada assignees.

The statistics for this post were derived from the following sources:
Elizabeth Jost, Admissions & Records Assistant, Boyd Admissions Office
USPTO Patent Full-Text and Image Database

The Nevada Copyright Litigation Landscape (Part 2)

In an effort to map the copyright litigation landscape in Nevada an earlier post on this blog provided the statistics for copyright cases filed in the U.S. District Court for the District of Nevada in 2010, 2011, and 2012 (from January 1 to September 24, 2012). The two charts in the post show the landscape with and without the Righthaven cases - cases that were filed by a single plaintiff and that might be viewed as an anomaly in the copyright case filings for the District of Nevada.

The following two charts continue the mapping of the Nevada copyright litigation landscape by providing breakdowns for the data on copyright cases filed in the District, excluding Righthaven. The first chart shows the number of copyright cases by protected subject matter and covers calendar years 2010 and 2011 and the period between January 1 and September 19, 2012.

[Click on the chart to view a larger version.]

Among the cases are cases with ties to the local entertainment and casino industry; for example, the one case filed in 2012 that involves a dramatic work concerns the magic of Mr. Raymond Teller (of Penn & Teller; Teller v. Dogge, 2:12-cv-00591). However, cases do arise from outside the entertainment and casino industry; for example, the sculpture at issue in the two sculpture cases filed in 2010 and 2011 is the "High Scaler" sculpture - a memorial to some of the workers who built the Hoover Dam (Liguori et al v. Hansen et al., 2:10-cv-00384 and 2:11-cv-00492).

The following chart shows the statistics for copyright cases per law firm for law firms representing plaintiffs, and documents the variety of plaintiffs' attorneys filing copyright cases in the District. Most of the cases were filed by Lewis and Roca LLP (nine cases), Greenberg Traurig LLP (six cases), and Randazza Legal Group (five cases). The 24 cases filed by "other firms" are cases filed by firms that each filed only one copyright case in the District Court in the given period of time.

[The above charts were prepared based on data provided by Lex Machina, Inc.]

Medal of Justice Reception to Be Held at UNLV

Together with the Las Vegas Chapter of the National Bar Association and the State Bar of Nevada, the Boyd School of Law and the History Department at UNLV are very pleased to announce a reception honoring Professor Rachel Anderson (Boyd School of Law, UNLV), Professor Joanne Goodwin (History Department, UNLV), Professor Jeanne Price (Boyd School of Law, UNLV), and Claytee White (Director, Oral History Research Center, UNLV) for their work in creating the February 2012 issue of the Nevada Lawyer.

The Medal of Justice reception will be held from 3:30 to 4:00 p.m. in the Reserve Room on the third floor of the Wiener-Rogers Law Library at Boyd School of Law on Thursday, August 30, 2012.

The February 2012 issue of the Nevada Lawyer presented comprehensive, state-wide research on the experience of African-American lawyers and the history of civil rights in Nevada. Feature stories include Professor Rachel Anderson's "Timeline of African-American Legal History in Nevada (1861-2011)," Claytee D. White and Geralda Miller's "Charles L. Kellar: Legal Trailblazer in Nevada," Professor Joanne L. Goodwin's "Nevada Civil Rights Act of 1965," Richard F. Boulware's "Dedicated to Excellence: National Bar Association, Las Vegas Chapter," and Geralda Miller's "Bar None: Pioneer African-American Lawyers in Northern Nevada."

Professor Berkheiser Works to Unchain Children

Congratulations to Professor Mary Berkheiser, whose work in the Juvenile Justice Clinic at Boyd School of Law has helped to end the routine practice of shackling juvenile defendants in Clark County.

While watching juvenile court proceedings about ten years ago, Professor Berkheiser noticed that teenagers and preteens would frequently be bound in leg irons, belly chains, and handcuffs. The practice of shackling juvenile defendants began, apparently, when the local courthouse was under construction. Marshals used shackles when moving juvenile defendants from one area to another to prevent them from running. Even after construction on the courthouse was completed, the policy of shackling juvenile defendants remained.

In response, Professor Berkheiser urged her third-year law students in the Juvenile Justice Clinic at Boyd School of Law to do someting about the shackling policy. Working under Professor Berkheiser's supervision, the students succeeded in persuading Judge William Voy, who presides over the Clark County Juvenile Court, to change the policy. Instead of routinely shackling all juvenile defendants, a new policy will allow for shackling only when a particular juvenile defendant is at risk of escape or violence. Clark County marshals have already removed leg irons from most juvenile defendants, and plans are in place to remove belly chains and handcuffs as soon as the courts are able to hire additional security.

To read more about Professor Berkheiser's efforts to end the shackling of juvenile defendants, please see Mary Berkheiser, Unchain the Children, Nevada Lawyer, June 2012, at 30; and Amy Kingsley, Why the Practice of Shackling Juvenile Defendants Is Coming to an End, Las Vegas City Life, August 8, 2012.

Congratulations, Mary!

Passing of Nevada legend Ralph Denton.

One of Nevada's "greats"--Ralph Denton--has passed away.  You can read his obituary here and an oral history here.  His family is in our thoughts at this most difficult of times.

Nevada Supreme Court Addresses Family Court Jurisdiction

By Professor Thomas McAffee

In Landreth v. Malik, 251 P.3d 163 (Nev. 2011), the Nevada Supreme Court held that a district court judge serving in a family court division may decide a case involving subject matter outside the scope of the statute setting forth the family division's jurisdiction. The family court judge had entered a default judgment in a conflict over competing property ownership claims of an unmarried couple — "a subject matter outside NRS 3.223’s scope." The court reasoned that the "Legislature does not have the constitutional authority to limit the constitutional powers of a district court judge in the family court division." But it did not conclude that the jurisdictional statute was unconstitutional. It was ambiguous and needed to be harmonized with other statutes. Since the family court division "was constitutionally established as a ‘division of any district court,’ Nev. Const. art. 6, § 6(2), and the judges sitting in family court are district court judges whose power and authority are derived from the Constitution and not statutorily," judges should be reluctant to read generally worded statutes, such as NRS 3.223, as conferring only specified jurisdiction.

Nevada Supreme Court Refuses to Apply Nondelegable Duty to Reno Hospital

By Professor Stacey Tovino

Whether a hospital is liable for the negligence of a physician on the hospital's medical staff depends on the application of several tort, agency, and health law doctrines including vicarious liability, actual agency, ostensible agency, corporate responsibility, corporate negligence, the law of nondelegable duties, and the corporate practice of medicine prohibition. In Renown Health, Inc. v. Vanderford, 235 P.3d 614 (Nev. 2010), the Nevada Supreme Court held that Renown Regional Medical Center did not have an absolute nondelegable duty to provide nonnegligent medical care to an emergency room patient through its independent contractor physicians. The Court also held, however, that the Medical Center could be liable for the acts of its independent contractor emergency room physicians under the doctrine of ostensible agency. The Court’s decision makes it slightly more difficult, but not impossible, for an injured patient to recover from a defendant hospital that hosts a negligent emergency room physician.

Nevada Supreme Court Analyzes Statutory Definition of Mental Retardation in Death Penalty Case

By Professor Mary Berkheiser

In the death penalty case of Ybarra v. State, 247 P.3d 269 (Nev. 2011), Ybarra challenged the district court’s finding that he was not mentally retarded and therefore was not categorically excluded from imposition of the death penalty. This was a case of first impression concerning the proper analysis to be performed under the statutory definition of mental retardation in NRS 174.098, which contains three components: (1) significant limitations in intellectual functioning, (2) significant limitations in adaptive functioning, and (3) age of onset.

The Court began by spelling out the standard of review. The determination whether a capital defendant is mentally retarded is based on factual conclusions but requires distinctively legal analysis to determine whether the elements of mental retardation have been proven; therefore, an appellate court reviews such a determination as a mixed question of fact and law. Applying that analysis, the appellate court gives deference to the district court’s factual findings, so long as those findings are supported by substantial evidence and are not clearly erroneous, but the appellate court reviews the legal consequences of those factual findings de novo.

Nevada Supreme Court Holds that Transfer of Clean Water Coalition Monies to General Revenue Budget Violates Nevada Constitution

By Professor Sylvia Lazos

In Clean Water Coalition v. The M Resort, 255 P.3d 247 (Nev. 2011), the Clean Water Coalition (CWC), an intergovernmental group made up of four political subdivisions based in Clark County, as well as private parties, challenged a 2010 legislative bill that transferred to general revenues $62 million that the CWC had raised from assessments and sewer connection fees to home owners and businesses based in Clark County. The Nevada Supreme Court held that the 2010 transfer of CWC monies for general budgetary purposes violated Art. 4, Sections 20 and 21 of the Nevada Constitution.

Nevada Supreme Court Applies Full Faith and Credit Clause in Sex Offender Registration Case

By Professor Thomas B. McAffee

In Donlan v. State, 249 P.3d 1231 (Nev. 2011), Eugene W. Donlan filed a petition in district court to terminate his requirement to register as a sex offender. The Nevada Supreme Court upheld the district court's denial of Donlan's petition, rejecting his argument that the Full Faith and Credit Clause (U.S. Const. Art. IV, § 1) requires Nevada to recognize California's termination of his sex offender registration requirement.

In 1985, Donlan plead guilty to a sex offense, which required him to register as a sex offender in California. The conviction was eventually set aside. Since 1986 Donlan registered as a sex offender in California and Nevada, in Nevada since moving here in 2005. In July of 2009, the California Department of Justice terminated his registration requirement. But in September of 2009 the district court denied his petition to terminate his Nevada registration duty.

Nevada Supreme Court Embraces "Notice-Prejudice" Rule

By Professor Jeffrey Stempel

In Las Vegas Metropolitan Police Department v. Coregis Insurance Co., 256 P.3d 958 (Nev. 2011), the Nevada Supreme Court formally joined the vast majority of states in embracing a "notice-prejudice" rule regarding whether an insurer may deny coverage due to late notice of a loss or claim by the policyholder. Under a notice-prejudice approach, late notice to the insurer is not necessarily fatal to the policyholder’s claim and the tardy policyholder may nonetheless obtain coverage unless the insurer demonstrates that it was prejudiced by the late notice. The Court made clear that the burden of proving prejudice was on the insurer because “it is more practical and equitable” to do so. In addition to stating that the result was required by longstanding administrative regulations (NAC 686A.660(4) states that late notice does not relieve the insurer of its obligations unless failure to comply with a policy’s notice provision “prejudices the insurer’s rights), the Metro-Coregis Court overruled State Farm Mut. Auto Insurance Co. v. Cassinelli, 216 P.2d 606 (1950), which had adopted a strict requirement that late notice was the failure of a condition that excused the insurer from providing coverage.

Nevada Supreme Court Interprets Statute Implementing Foreclosure Mediation Program

By Professor Jean Sternlight

In Pasillas v. HSBC Bank USA, 255 P.3d 1281 (Nev. 2011), and Leyva v. National Default Serving Corp., 255 P.3d 1275 (Nev. 2011), the Nevada Supreme Court made several important interpretations of the statute implementing Nevada's Foreclosure Mediation Program, NRS 107.086 (“NFMP”). Adopted in 2009 in an attempt to deal with the large number of foreclosures in Nevada, the NFMP requires that in order to foreclose on an owner-occupied residence a trustee must provide an election-of-mediation form to the owner together with a notice of default and election to sell. NRS 107.086(2)(a)(3). If the owner elects mediation the deed of trust beneficiary must attend the mediation, mediate in good faith, provide certain documents, and, if attending through a representative, send one with authority to modify the loan.

Nevada Supreme Court Adopts Public Trust Doctrine

By Professor Bret Birdsong

The re-emergence of the public trust doctrine has been among the most significant episodes in the coming of age of American environmental and natural resources law over recent decades. Nevada joined this important trend in Lawrence v. Clark County, 254 P.3d 606 (Nev. 2011). The public trust doctrine holds that the public holds inviolable rights in certain natural resources that a sovereign state owning such resources is constrained to act as a trustee for those public rights. In this case, involving the state's attempted sale of lands in the Colorado River valley to Clark County, the Court explicitly adopted the public trust doctrine as the law of Nevada and described how it constrains the state’s disposal of trust resources. The decision, though particular in its factual scope, is a careful, sweeping, and singing recognition of the public's interest in natural resources owned and managed by the state.

Nevada Supreme Court Applies Quarles's Public Safety Exception

By Professor Katherine Kruse

In Lamb v. State, 251 P.3d 700 (Nev. 2011), the Nevada Supreme Court applied the public safety exception of New York v. Quarles, 467 U.S. 649 (1984), which permits officers to ask a suspect questions without first giving Miranda warnings if they reasonably believe it is necessary to secure their own safety or the safety of the public. In Quarles, the police apprehended the suspect in an armed rape in the supermarket into which he had fled. He had an empty shoulder holster but no gun. After handcuffing him but before giving him Miranda warnings, the police questioned him about the location of the gun.