Patent litigation is notoriously expensive, but few patents are ever litigated. Among the fraction that are, only a small group dubbed the “most litigated patents” by Allison, Lemley & Walker are asserted by repeat patent plaintiffs in many lawsuits. While repeat patent plaintiffs are responsible for a disproportionate share of litigation costs, economic theory predicts their patents will be higher quality such that they offset the costs they generate in winning more disputes. Allison, Lemley & Walker, however, find the owners of the most litigated patents overwhelmingly lose in court. This suggests that repeat patent plaintiffs tend to burden innovation by irrationally litigating weak patents through trial. Because of their troubling results, this Article revisits the relationship between the number of lawsuits in which a patent is asserted and its owner’s litigation success. I find owners who assert their patents in more lawsuits generally win more judgments and that this relationship extends to a comparison of most litigated to once litigated patents. These results support an optimistic view of the impact of repeat patent plaintiffs. This optimism does not, however, extend to repeat software patent plaintiffs, who I find are not more likely to win infringement judgments. This fact is not inconsistent with rational software patent owner behavior but is best explained by Bessen and Meurer’s theory that software patents possess more uncertain boundaries.
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