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Counting patent cases turns out to be a little like counting votes at a political convention. There are hard counts — those delegates firmly committed to a candidate. And then there are squishy counts, which include those delegates leaning toward a candidate but vulnerable to persuasion. Some patent cases are easy to tally — others, much more tricky. Here is what we did and why. We asked CourtLink, an online Lexis Nexis service that collects docket information from federal courts, to provide us with a list of all patent cases filed in 2002. There were slightly more than 2,300, about 200 fewer than the year before. We didn’t want to count cases that petered out quickly, so we narrowed the universe to only those cases active as of Feb. 14, 2003, the date CourtLink pulled the cases from their database for us. That left us with 1,690 cases, once duplicate entries were removed. (We didn’t look at International Trade Commission cases, but stay tuned. We will in the future.) We did not make a distinction between firms acting only as local counsel and trial counsel, simply because it turns out to be a difficult line to draw. (What’s more, in selecting local counsel, do you want a firm without patent experience?) Finally, we did not measure the complexity of cases or a firm’s success. From there, we asked firms with more than eight mentions, as either plaintiffs or defense counsel, to supplement the CourtLink data. In the past, we have found that CourtLink does not capture all representations. Sometimes, only local counsel is named, especially on the defense side. Other times, docket information is simply out of date. Now comes the squishy part. On the plaintiffs side, we didn’t necessarily count all cases. Here’s why: We didn’t want to penalize firms that filed a single suit against multiple defendants when another firm may choose to file individual cases. So when a firm listed multiple cases with the same plaintiff, we asked them to explain why we should count them separately. If the cases involved different sets of patents, different technology, or different discovery tracks, we counted the cases separately. But if the cases involved the same patent, highly similar technology, and consolidated discovery, we counted them as one. We made these decisions case by case. At the end of the exercise, we decided to publish only those firms that handled at least 20 cases initiated in 2002.

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