No, it's based on their extensive analysis of the cases and all documentation associated with those cases that tries to discern if there are even mere allegations by the plaintiff that the patent infringement was due to any manner of copying. Their stats show that, aside from pharmaceutical or chemical patents, the number of patent cases in which copying is even alleged at any point is very small (i.e. a few percentage points).
One could argue that perhaps that low incidence is simply due to people not bothering to allege copying since it isn't relevant to if infringement occurred. The authors suppose that that's unlikely, since copying is highly relevant to the question of whether or not willful infringement occurs, and their limited evidence suggests that findings of copying do in fact tend to lead to findings of willful infringement. To test that hypothesis, they gathered up an additional 102 cases where evidence of copying was found and found that in nearly 2/3 of them copying was alleged by the plaintiff. (pp. 28-29 in the pdf). That would seem to be fairly strong evidence that if a plaintiff has actual evidence of copying they're highly likely to allege copying somewhere in their complaint.
Thus, it's a reasonable conclusion that since only 10% overall of patent litigations involve even allegations of copying (and far fewer for anything outside of pharma or chemical patents), that most cases where there's actual evidence of copying result in such allegations, and that allegations themselves are merely an upper bound on actual copying (since the allegations may well be untrue), that there's actually not much copying going on, which means that most of the inventions being sued over were produced independently rather than through any kind of "copying" or "theft."
One could argue that perhaps that low incidence is simply due to people not bothering to allege copying since it isn't relevant to if infringement occurred. The authors suppose that that's unlikely, since copying is highly relevant to the question of whether or not willful infringement occurs, and their limited evidence suggests that findings of copying do in fact tend to lead to findings of willful infringement. To test that hypothesis, they gathered up an additional 102 cases where evidence of copying was found and found that in nearly 2/3 of them copying was alleged by the plaintiff. (pp. 28-29 in the pdf). That would seem to be fairly strong evidence that if a plaintiff has actual evidence of copying they're highly likely to allege copying somewhere in their complaint.
Thus, it's a reasonable conclusion that since only 10% overall of patent litigations involve even allegations of copying (and far fewer for anything outside of pharma or chemical patents), that most cases where there's actual evidence of copying result in such allegations, and that allegations themselves are merely an upper bound on actual copying (since the allegations may well be untrue), that there's actually not much copying going on, which means that most of the inventions being sued over were produced independently rather than through any kind of "copying" or "theft."