Patent Litigation Statistics: Number of Patents Being Litigated

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Over the past two decades, the number of patents being litigated has risen dramatically. More complaints are being filed and more patents are being asserted with each complaint. Since 2004, however, the numbers have been steady. A third factor, not shown in this graph, is an increasing trend to include more defendants in a single complaint. As a point of reference, in 2006, almost 200,000 patents issued.

38 thoughts on “Patent Litigation Statistics: Number of Patents Being Litigated

  1. Does anyone know if these types of statistics are available for foreign jurisdictions? If so, where? Thanks!

  2. LL,

    With respect to your statement regarding http://www.usptoexamienrs.com, I am also a believer that comments by practitioners will be very helpful regarding correcting some of the methods practiced by some of the patent examiners. These comments are anonymous, and opinions of people are protected by First Amendment (Freedom of Speech). More importantly, with respect to public servants, such as patent examiners, the standard for proving libel is very high and therefore, it is very difficult for a public servant to prove a libel case against a website or for that matter a writer of a commentary. However, attorneys working in a private practice are not public servants, thus, although people’s opinion and the writers of commentaries are still protected by the First Amendment, the standard of proving libel is not as high as public servants, so website developers and website owners may not see it as safe to provide a website to talk about an individual attorney at a private practice. You can however, discuss different law firms in general. In fact, I think http://www.usptoexaminers.com has an area for discussing law firms. There is also another website that people discuss law firms. That website is http://www.greedyassociates.com (herein after “ga.com”). However, ga.com is specifically tailored for law firm associates from each law firm to discuss the short comings and their experience at a particular law firm.

  3. JD, we all hope & pray that Bolski DOES change the law.

    And, no we don’t need to have that discussion again. After all, I agree that we can not reject if we don’t have art. I was pointing out that a lot of the complaints we get about “bad” business methods patents are from people that say “It was well known” but have no art. And this line was, in part, a continuation of that. They are often right that it WAS known, but there is no evidence. Results in a lot of bad patents based on the “If the glove don’t fit, you must acquit” reasoning.

    thanks,

    LL

  4. LL,

    The individual in question is an SPE. And like I said, I’m sure his actions are not only condoned, but encouraged, by his boys in PTO (mis)management.

    I do recommend using Rule 3. No change in my opinion there. In the majority of the cases I see, calling the SPE is a waste of time. TC Directors are a bit more responsive, but there are plenty of useless TC Directors too.

    I believe in putting my complaints in writing. Phone calls are too nebulous.

    “The examiners get cases filed for things that never should (in my opinion) be patentable.”

    Fortunately, it’s not your opinion that defines patentable subject matter. It’s the law. Of course, Bilski may change the law. We’ll all have to just wait and see.

    “the cases are often directed to things that HAVE been done but there is no evidence of it.”

    We’re not going to have that discussion again, are we? :-)

  5. In recent months, there has been a significant depreciation in worth of dollar against foreign currencies such as Yen, Euro, Stirling, or in my local client’s case: the Shequel. This makes US patent litigation more affordable for foreign companies. It also makes market entry into US more affordable, but lowers the expected return on investment.

    Presumably, US companies will find outsourcing R&D work and patent drafting abroad less attractive but will find exporting products to foreign markets easier.

    It will be interesting to see if this increases or decreases the amount of litigation between US and foreign companies.

    I predict that there will be a noticeable reduction in the amount of cases filed by US companies against foreign entities in the US, and increase the amount of cases filed by foreign entities against US companies.

    That said, there are many companies registered in Dellaware but with management situated in other countries, and there is an overall trend towards globallization.

    Any thoughts on the above, would be appreciated…

    Feel free to email me directly, if you think the issue a side-track from the main thread…

    Michael

  6. business method applications should gradually get easier to examine as the amount of known prior art increases from art cited in other business method applications, from published business method applications themselves and from other sources

  7. OMG!! JD is actually saying that you should complain when you don’t get the correct response from an examiner!! Usually he says it is a waste of time whenever I tell people that. Why the change of opinion, JD??

    Seriously, behavior like indicated above is inexcusable and the SPE (or director, etc. on up, if no satisfaction from the SPE) should be notified. Personally, if it was one of my examiners, I would want to know. Skipping out on an interview is considered a major offence on your customer service PAP (something like a -5 (or -10?) points on the rating for that element. (That is equal to letting 2.5 after-finals go overdue, for reference.)

    Again, make the problem known. ASAP! Ideally, what you should have done when they were not there is go to the SPE right then (or complain right to the TC director if no SPE is available) and let them know about the examiner blowing off the interview. That’s the best way to make sure they know & get something done about it.

    As for the web site, I think that it is a very good idea (actually, I suggested it early-mid last year, but it didn’t seem popular with the people that responded). Please, do post there for the bad AND the good. It can help. And we need to do the same for lawyers & law firms.

    And, yes, the business methods are a hard place to get things done, for both the applicant AND the examiner. For that, I blame BOTH management AND the public/bar/lawyers/applicants. The examiners get cases filed for things that never should (in my opinion) be patentable. The prior art is largely not in written form, so is difficult to search. And they (even primaries) need to get ALL of their allowances approved before they are allowed (this would not be the “2nd pair of eyes”, but a pre-allowance conference). Most of these examiners get less than 10 allowances per year, so they need to do a LOT of 1st actions. The reasons for the hard time on allowances is, in part, the public outcry any time something issues there that someone “thinks” was already done (often the allegations are without any evidence, but that is another matter). And since many of their applications are nothing more than claiming ways to conduct business transactions, sometimes with, sometimes without, a computer, the cases are often directed to things that HAVE been done but there is no evidence of it. (Personally, they couldn’t pay me enough to examiner cases there. I, for one, would love to see the Court finally eradicate all business methods.)

    thanks,

    LL

  8. Like I said, wasn’t being snide, but to answer your question, no I’ve never read such a statement in any Office Action.

    I read the comment about the examiner you’re referring to, and I’ll try to save you, and every other practitioner visiting this site some time and effort: if you have a case assigned to any examiner in any AU in 3620’s or 3690’s, don’t bother trying to arrange any interviews and/or work out any agreement. That would be wasting your time.

    I hope the practitioner who posted that comment filed a separate letter of complaint with the PTO as permitted by Rule 3. (Though I doubt in the case of the examiner referred to it would make much difference as that examiner is simply following PTO (mis)management’s orders, IMO.)

    Personally, I would rather see practitioners utilize Rule 3 more. Customer service is part of the examiner PAP (performance appraisal plan). So if “playing the game” and “being nice” don’t get you anywhere, let your displeasure be known in a more official manner.

    Just saying. :-)

  9. “What are you going to learn about the examiner that you didn’t learn from reading the OA?”
    When I read that a patent prosecutor traveled to VA for a personal interview with an examiner, but the examiner was not at his office and even after seeing the examiner entering the office building several hours after the scheduled appointment time, the examiner never responded to the voice messages left on his phone regarding the personal interview, I can confidently conclude that this examiner simply doesn’t care. It is highly unlikely for this examiner allow the patent application no matter how strong your case maybe. The chances are that he probably would not even read the arguments in any detail. So why waste the client’s money by scheduling a personal interview or writing a response to a final Office Action when it is fair to say that if I want the patent application to issue, I need to just appeal the case or do my best to have my case assigned to another examiner/supervisory examiner.

    The last time I read an Office Action, the Examiner did not say, “and if you call me to setup a personal interview and I agree, I will not be at my office. I am just saying I am giving you a personal interview, so that I can waste your time traveling to the Patent Office and hopefully waste your client’s money so that I can, at least in this manner, discourage your client from filing anymore patent applications.” Have read such a statement in any Office Action?

  10. “The patent practitioners need take advantage of this website and start providing their opinions about each Patent Examiner.”

    What are you going to learn about the examiner that you didn’t learn from reading the OA?

    I’m not being snide, I’m just not sure how much value such a site can add to the process.

  11. With respect to http://www.usptoexaminers.com, it is an interesting website. I can see it providing value when prosecuting a patent application. However, the website is just a means to learn more about each of the Patent Examiners. The patent practitioners need take advantage of this website and start providing their opinions about each Patent Examiner.

  12. Ignoring the groups of attorneys that buy patents just to sue someone, to me a “patent troll” is just someone with a patent that can’t afford an attorney. That’s why contingent fee agreements came about. It’s about lawyers risking their time to help someone who otherwise can’t afford an attorney. What’s inherently evil about that?

  13. “JD, do you have a very limited understanding of the passage of a short period of time that may be indicated by elipses? Kind of like, what I just described happening?”

    I assume you’re referring to ellipsis, the plural of which is ellipses, which is the omission of a word or phrase necessary for a complete syntactical construction but not necessary for understanding.

    Not sure what the passage of time has to do with the use of ellipsis, but I do understand that the correct use of the English language is not your province.

    “Each of the lower vertical hashes is indicative of a year from 1995 to 2007. We see that it starts out rather near 0 or negligable amounts. Then, you’ll notice that at sometime around mid 2007 the amount of bs literally went undefined and broke 100%. The only possible explanation for this that one can rationally surmise is that a recent string of judicial decisions have created an atmosphere friendly to bs. This also helps one to understand the results Dennis arrived at above and helps pave the way for a better predictions of how the trend in his graph will likely continue.”

    I’ll also assume that the “one” who can rationally surmise in your example is you. I’m sure in your mind you’re completely rational. It’s probably more entertaining for all of us if you continue to post while under the influence of this delusion.

    Although most of us would probably disagree with your conclusion regarding the “amount of bs in patent claims,” even those who might agree could point to other possible explanations other than a recent string of judicial decisions that have created a bs friendly atmosphere. For example, how about PTO (mis)management’s directive that quality = reject, reject, reject?

    Do you have any judicial decisions that you feel have particularly contributed to the creation of this atmosphere? If so, please share.

    It’s also nice to learn that there was no bs in patent claims prior to 1995. That’s why I read the posts and comments on this site, for interesting factoids like that one.

    For managing an entire post without double negatives and baby talk, I’m raising your grade to a C-.

  14. JD, do you have a very limited understanding of the passage of a short period of time that may be indicated by elipses? Kind of like, what I just described happening?

    That’s a cool site to track examiners, we were thinking of forming one about attorney’s last year, but nobody has done it to my knowledge. That would be truely valuable to your clients and yourself as well I would think, seeing a review of you by your peers and the examiners you deal with and maybe former clients.

    BTW, nice graph Dennis.

    I’d like to share my findings with everyone too:

    Amount of bs in Patent Claims

    ——————–|
    100% ———–|
    90% ————-|
    80% ————-|
    70% ————/
    60% ———–/
    50% ———-/
    40% ———/
    30% ——–/
    20% ——-/
    10% ——/
    0% ____/
    ———————–
    ———-||||||||||||
    ——-1995–2007

    Each of the lower vertical hashes is indicative of a year from 1995 to 2007. We see that it starts out rather near 0 or negligable amounts. Then, you’ll notice that at sometime around mid 2007 the amount of bs literally went undefined and broke 100%. The only possible explanation for this that one can rationally surmise is that a recent string of judicial decisions have created an atmosphere friendly to bs. This also helps one to understand the results Dennis arrived at above and helps pave the way for a better predictions of how the trend in his graph will likely continue.

  15. whats wrong with calling “patent trolls” what they are – patent trolls. They are just a bunch of lawyers who form a company whose only product is lawsuits. They are parasitic and have no value. The corporations they sue however add real value to the marketplace with real research and development.

  16. Dear anonymous2,

    Weell do ya’ now! Me too, and that makes three…

    Sláinte, to your health.

  17. “Hmmm, well, I’m not sure if I know anyone interested … but I know someone who very well may be.”

    So are you not sure if you know anyone interested, or do you know someone who very well may be?

    Of course, the bigger question is: who cares?

    I won’t even bother to ask what you’re talking about.

  18. “Hmmm, well, I’m not sure if I know anyone interested … but I know someone who very well may be.”

    So are you not sure if you know anyone interested, or do you know someone who very well may be?

    Of course, the bigger question is: who cares?

    I won’t even bother to ask what you’re talking about.

  19. It would be interesting to see the lawsuits further divided by technology type (bio, chem, business method, mechanical, med. device, computer/internet, etc.) because we have seen a shift away from life sciences litigation, locally.

    I vote for NPE over Troll.

  20. Totally off topic, today I got a call from someone representing x major law firm here in DC wondering if anyone I know might possibly have a backgound y, and would I know anyone who was interested in an opportunity with them?

    One minute after, I found out why a recent “date case” (old case nobody wants to do) became such: An IDS that is over 700 entries long.

    Hmmm, well, I’m not sure if I know anyone interested … but I know someone who very well may be.

  21. Looks to me like it fairly closely mirrors the US economy. As one proxy of the economy, look at the DJIA over the same period:

    link to finance.google.com

    (click on the “max” view to see a 30 year view)

    A coworker uses the number of TM filings as a leading economic indicator for his investment strategy.

  22. Dennis:

    Where does the data used to create this chart come from?
    I’d like to include it in a scholarly study I’m doing of trends in patent litigation.

    Thanks!
    Wayt Gibbs

  23. Re the above questions: “Can you add a graph of the number of patents in force over time? Since more and more patents are being filed over time, more must be issuing, possibly explaining the increase in litigation.”

    “Patents in force” is a frequently misrepresented and never accurately presented number, because “patents in force” does NOT directly correspond to the number of patents issuing. A high percentage of patents nowdays become unenforceable long before their normal expiration dates because of non-payment of their maintenance fees.

  24. Just:

    Oh, I start as soon as the bells of St. Mary’s strike 12!

    And, sure, an individual inventor who does not practice his or her invention can bring an action in the ITC — the “domestic impact” being the harm to the inventor’s ability to license his or her patent.

    See the recent ITC complaint filed by Gertrude Neumark Rothchild in the Short-Wavelength Light Emitting Diodes investigation.

  25. Dear Richard Cauley,

    I’ll be havin’ a pint o’ two pretty soon – this is one day I don’t wait till 5. How ’bout you?

    I’ve practiced some of my inventions but not others, and I’m averse to dealing with vulture capitalists since they tend to (try to) leave angel investors with nothing and VCs de-motivate/destroy inventor/entrepreneurs. So, maybe that makes me a part-time NPE.

    Sorry to be naïve, please explain:
    “It might also be interesting to add the complaints filed with the ITC for patent infringement.”

    Could you mean that an inventor with an infringed patent can file a Complaint with the International Trade Commission? Nah, that would be too good to be true.

  26. Just:

    Perhaps the better term would be non-practicing entities (NPEs). The principle is still the same, though. NPEs tend to sue lots of defendants in one lawsuit, throwing off the number of lawsuits in Dennis’ chart. It might also be interesting to add the complaints filed with the ITC for patent infringement.

    And a happy St. Paddy’s day to you!

  27. Dear Richard Cauley,

    Top O’ the Morin” to ya’.

    With all due respect, you may have missed an important message:

    Owing to its pejorative nature and propaganda usage, the term “Patent Troll*” is passé. Rather, when called for, please use “patent abuser” or simply refer to one who abuses the patent system.

    And, please don’t lose sight of the forest for a few (bad) trees. Here’s the thing:

    Most patents promote Science while some patents promote doodley-squat; that’s Just life, to take the bad with the good, please get over it and move on. Like anything else, you got to take the bad patents with the good and deal with the bad on a case by case basis.

    *Another problem with the passé term is that it defamed far more honorable honest-to-God self-employ inventors than those shyster lawyers who abuse the patent system {;o).

  28. this trend points out the need for improved inventorship determination methods my match or scratch system requires 60 days advanced notice of intention to file this gets all devulged litigants known before filing deadline preventing wrongful awarding. Also this lets undevulged conceptions be awarded immediatly after cheching master lists and updates for under manufacture non sensitive original concepts nothing alleged from historical unpreviously widley known inventions will be allowed to disqualife the inventors creation. open form public meetings eliminate his historic corruption.non disclosure intentionally to anyone and the retention of intellectual materials in applications even when determined incomplete conceptions retains inventor fairness in crediting and sales or those auctionable items also changes in wording practices on claims to simple concise easy to understand layman terms with technical data in the rear of the claim will eliminate intentionally vague evasive filings with no intellectual materials.Also this will ease wrongful issuances due to examiner error. Monthly auctions by catigory of the years previous invention filings give developers time to determine fesability of R.+D. Inventors are free to enter consignment partnerships any time after filing.

  29. Excellent suggestion Dave.

    I’m sure it is a lot more work, but I’d be very interested to see the number of suits that go through trial. Most I have watched are settled well before trial, if not immediately following the Markman hearing/decision.

    I think the Markman hearing is helpful in reducing the time and expense of litigation in a lot of cases. A comparison of the number of filed cases to the number of cases that have a trial would be instructive.

  30. What’s really probative in terms of litigation costs is, of course, the number of defendants, as each normally has its own counsel. One patent asserted against 20 defendants is, in many respects, 20 lawsuits. Given the rise in the number of troll lawsuits against everyone in an industry, as opposed to one competitor against another, I think that graph would more accurately reflect the number of “real” lawsuits — not the number of patents.

  31. Can this graph be normalized by the number of patents issued? This would yield something like a percentage of issued patents which become litigated, which is a number I’d be more interested in.

    Thanks,

    Dave

  32. Can you add a graph of the number of patents in force over time? Since more and more patents are being filed over time, more must be issuing, possibly explaining the increase in litigation.

  33. This graph makes an excellent point. It is no mistake that the rise in patent suits has coincided with an unprecedented rise in US economic growth – unprecedented in world history. It reflects the large growth and increasing importance in technology to the US economy, and thus in the increasing value to companies in enforcing and protecting their technology. Also of course reflects the resulting increase in the filing of patents. All these types of graphs showing such sharp upward increases in patent, litigations, number of patents in litigation, etc., that coincide with massive economic growth and power for the US, are positive signs for patents, the economy, the spike in innovation, all great things. Thanks for this post Dennis! This is the type of information we need to keep seeing, to help the patent system throught this tough time while it is under these misguided attacks from all branches. Great wealth is out there for all of us, if we can hang on!

  34. Dennis,
    Thanks for the interesting graph. For my lectures in a Korean University, can I receive the exact number of litigations?
    Thanks regardless of your no answer.

  35. Dennis:

    How does this graph compare with a graph of the number of non-patent business litigation complaints filed and a graph of the number of trademarks being litigated?

    Thanks

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