Age of Patents when Asserted

By Dennis Crouch

The chart above is a histogram showing the age of utility patents at the time when an infringement complaint is filed. I used the Derwent LitAlert patent database and limited the search to only lawsuits filed Sept 16, 2011 – Sept 15, 2012 (this avoids false marking cases). I also excluded cases that were identified as declaratory judgment lawsuits in the LitAlert database. The data has some holes but it is roughly accurate.

117 thoughts on “Age of Patents when Asserted

  1. I ever seen on internet. This is rare to find that’s why difficult to understand. Anyway,you are definitely someone that has something to say that people need to hear. Keep up the good work

  2. This is the perfect blog for anyone who wants to know about this topic. The article is nice and it’s pleasant to read. I have known very important things over here. I admire the valuable advice you make available in your expertly written content.

  3. Lol – meltdown? Nice of you to try the “just declare victory” gambit, but there was no meltdown in my response. I do notice that you (wisely?) do t actually answer my question. So you cannot figure out how previous inventions would be protected, or what those previous inventions might include?

    I think you should spend less time trolling and more time understanding this area of law.

  4. Are you or are you not including the point I made in your version of the direct quote?

    Our computers are working now to parse this question. Sometime in the next five to six hours we will know if it is a “great question” or an “excellent question.”

  5. Are you or are you not including the point I made in your version of the direct quote?

    I would be happy to answer, but I can’t make any sense of your question. Sorry.

    Do you care to comment on the actual point of the continuation as protection for the inventor, or do you just want to Troll?

    I did, thank you. Now I’m bored with that. But I’m fascinated by your meltdown in response to being called out on a really weak (and misleading) citation. Aren’t you the one that is scrupulously concerned with whether people properly represent the law here?

  6. Nice obfuscation.

    Are you or are you not including the point I made in your version of the direct quote?

    Do you care to comment on the actual point of the continuation as protection for the inventor, or do you just want to Troll?

  7. “Did you notice too, that before MM hikes up his skirt and runs, how he tries to spin his defeat?”

    Yes, that’s MM’s behavior alright. And after he runs away he usually sticks his head back in the thread for some grade school, one liner insults. Good thing is he will be silent now, at least until Professor Crouch post the next article that he thinks he can weasel his way into with the same old defeated positions.

  8. anon said:
    “Try to follow Leopold. I was … just … attempting to Troll …”

    Hey, this “isolating and removing extraneous thoughts” thing works pretty well!

  9. since you wished to not accept my point (which is a part of the direct quote), your version is not the direct quote. If you accept my version as part of the direct quote, then all you are doing is attempting to Troll me.

    CHECKMATE!!!!

    Leo tried to rely on over-rated and tired logic but to no avail!!!!! The master of words remains undefeated!!!!!

    [insert golf clap here]

  10. the “victory” you keep claiming in Prometheus is not what you think it to be.

    What do I “think it to be”, oh great mindreader?

  11. Try to follow Leopold. I was highlighting the portion of the quote dealing with making sure prior inventions received their just value. A continuation kept alive – remember there is no new matter – allows an inventor to capture their just value.

    Is it really that difficult for you to follow?

    Huh? “My version” is a direct quote.” Actually, since you wished to not accept my point (which is a part of the direct quote), your version is not the direct quote. If you accept my version as part of the direct quote, then all you are doing is attempting to Troll me.

  12. My point is clear: there is nothing wrong in keeping a continuation open to optimize patent protection.

    Oh, I see. “Clear” is one of those words that you’re re-defining, using your “common sense” rule from KSR. Just a hint, us ordinary mortals don’t see how a quote that cautions against granting too many patents is helpful in proving that the current law encourages the filing of additional applications to “optimize” patent protection. To be clear (and I’m using “clear” in its normal, dictionary, sense), I agree with your restated point, so far as it goes. I just think your reliance on KSR for this point is weak.

    Not sure why you think my editing is “mangled,” as I merely isolated and removed extraneous thoughts from the Supremes.

    LOL. I’m sure the Supremes appreciate your removal of the clutter. Otherwise we might have thought that the limitation of their idea to “advances that would occur in the ordinary course without real innovation” was actually important to their point.

    Or do you think my editing is not included in what the Supremes called “prior inventions?”

    Say what? You’re making even less sense than usual.

    I think that your version does more mangling than mine.

    Huh? “My version” is a direct quote.
    Awesome “substance,” anon.

  13. My point is clear: there is nothing wrong in keeping a continuation open to optimize patent protection.

    Not sure why you think my editing is “mangled,” as I merely isolated and removed extraneous thoughts from the Supremes.

    Or do you think my editing is not included in what the Supremes called “prior inventions?” I think that your version does more mangling than mine.

  14. From KSR: “Granting patent protection to advances… may, for patents combining previously known elements, deprive prior inventions of their value or utility” (emphasis added).

    Wow. That’s some pretty aggressive eliding there, anon. In any case, it is not clear how this supports your argument, either in its original form or in the mangled form you presented. What’s your point, exactly?

    The actual quote:

    Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility.

  15. but it won’t do much for the practice of deliberately keeping a continuation pending long enough to rewrite claims based on how one’s technology has gotten implemented.

    You seem to assume that this practice is a bad thing…

    From KSR: “Granting patent protection to advances… may, for patents combining previously known elements, deprive prior inventions of their value or utility” (emphasis added).

    The practice you indicate is merely one way of making sure that the prior inventions are not deprived of their value.

    There is nothing wrong with this practice.

    No new matter can be added (without rightfully changing the priority date), and the fact of a continuation present is readily ascertainable. Unless fo rsome reason you do not want to give the inventor their full worth, I am not sure what exactly you are QQ’ing about.

  16. Did you notice too, that before MM hikes up his skirt and runs, how he tries to spin his defeat?

    I certainly don’t recall being asked to admit either such proposition in any context where the proposition would “self-defeat” my well-known position on Beauregard claims.

    Point in fact, his admissions had nothing to do with “being asked” and the insertion of that phrase is enough “truth” to cover the misrepresentation that he actually did make the admissions that I speak of. While it is not an outright bold-faced naked lie, it is deception nonetheless. He can truthfully say that he does not recall being asked – but his insertion is a red herring and an obfuscation of the critical point – that he did make the critical admissions, and those admissions will be held against him. The beauty of his self-defeat was that no one had to ask him – he offered the admissions on his own (that’s why self-defeat is an apt description).

    “Configured is structure” and “functionally related” cannot be denied and each of these does in fact destroy MM’s agenda against Beauregard claims. Sure, he is welcome to his opinion, but if he wants to post on his desired change in the law, he will not be able to lie about the factual and legal background in his attempts to buttress his subjective views.

    Nevertheless, mark my word, I give him three months before he tries again. And when reminded of his admissions, you can be sure he will pull out the “I didn’t hear you/can’t remember” card, you can be sure that someone will remind him, and you can be sure that (once again) he will hike up his skirt and run. That’s his MO. He runs from substance and is afraid of content because he cannot compete on those grounds, he cannot worm his “policy” in an honest discussion and that’s why he depends so much on insults and subterfuge. His lack of confidence betrays him and he simply will not be forthright about his desired changes to patent law. He does not realize that all he has to do is present his desired changes as desired changes to avoid the smackdowns he gets. But no, he had to try to dress up his desired changes, has to try to denigrate the existing state of law and fact in order to make his desired changes more palatable.

    He fools no one (but himself).

  17. “But go ahead, crow again how you were the first to post the link to the Government’s directions on how to apply the decision – you know, the one that ignored your crrp make-up theory and employed instead the 101 Integration Expert’s integration stance.”

    Thanks for reporting the facts and keeping the record honest, anon. Plus as a bonus, whenever this factual sequence of events is mentioned MM immediately shuts up and runs from the thread!

  18. “I’m not ignoring reality, law or facts. Again.”

    Yes, you are MM. That’s all you do.

    You ignore the law of

    1. Integration Analysis.

    2. Claims as a Whole.

    3. Diehr as controlling precedent

    You ignore the facts of the Official Office Guidelines on “Integration”.

    You ignore the reality that the Court 9-0 and the Office has completely ignored your bs whacky mental steps test theory.

    Oh.. and please no more lame excuse of not knowing what “Integration” means or not being able to find the Office Guidelines, even though you first posted the link!!

  19. I know you think it is an illogical p.o.s.

    Luckily, you are not in charge of the law. Nice to see that this doctrine is in place now and any attempt by you to indicate otherwise should – if you are intellectually honest – be appropriately phrased as your subjective desire to change the law.

    Thanks.

    ‘Configured to’ can certainly imply structural relationships to one skilled in the art in particular context

    It is more than “imply.”

    Thanks for at least trying to be honest with the basics. Next step, realizing that “in the art” fully makes such software configuring a machine a structural relationship – as held in law and as known in fact. Your acceptance of these truths may force you to abandon your agendas, or at least be more honest about the new law you desire to have.

    And thank you for not bold-facedly lying. I really did not want to have to make you look like an absolute liar and Prof. Crouch would have been obliged to delete your naked lies.

    As I have said, I actually enjoy when you try to engage with substance. It is delightful to see you self-defeat.

  20. or else you wouldn’t have gotten on your high horse

    Don’t ASSume – read and understand. I ride the high horse because I can. Is that what bugs you the most?

    That’s ridiculous.

    No it’s not. And unlike you, I have provided an abundance of substance to show why.

    Again – read and understand.

    I think the commenters here tend to be fairly savvy. That’s likely what bugs you the most.

    LOL – another self-defeat and one you most likely won’t understand. When you (by which I presume you mean to indicate “the savvy commenters” sound exactly like the folk at Techdirt, you inherit that same (lack of) savvy commenting skill, that same, vacuous and incorrect understanding of patent law. Yes, it does bug me to have such inanity passed off with such haughty (and utterly mistaken) sense of knowledge of patent law that you pretend to have. Your “policy” desires just are not the same as actual knowledge.

  21. “You cannot refrain from attacks”

    LOL. I’m refraining all the time. Even now

    LOL right back at you – your ability to refrain lasted all of what? Less than an hour?

    Wow, you must be exhausted.

  22. If being honest and forthright is “normal,” then certainly I’m “normal.”

    No way – simply not believable. You are quite deluded in thinking so.

    Quite in fact, your response to the substantive law that I provided shows an absolute lack of normalcy and is merely a fallacious attempt to have me provide a law that does not exist. Quite in fact, since normal is as I post

    do you know what “personal property” means? Goes along with personal liberty? Are you really advocating the abrogation of personal property, please throw some meat on your vacuous conjectures),

    …it is STILL up to you to show some substance. If a law – as in the one you ask me about – did exist to support your desired contentions, then by all means, why don’t you produce it? Or are you yet again hiding behind the skirts of “policy, and anyone can have an opinion”? After all, you are the one advocating change – you are the one that needs to pony up the substance to support what you want.

    And yet, from you, nothing (again). Just goes to show how empty and vacuous you are. Yet again, trying to pawn off what you need to present to make the issue a debatable one on to someone else. Have you ever really provided anything remotely of substance on a such a discussion? Ever?

    As everyone knows, that fact has driven you and your cohorts around the bend over the years

    I have no idea what you are talking about with this quip. I am not “over the bend” with you as a patent prosecutor. It takes all kinds, and believe me, a patent prosecutor as warped in their views of patents as you is not an impossibility. It is just not something that makes you special or that you should be all that proud of. Now, if you had the views you had and were actually able to post cognitive and substantively about those views, you might have a reason for your immensely deluded ego.

    You don’t, thus you don’t.

    As to aligning yourself with the Supreme Court, I think the record speaks vastly differently – No Diehr being over-ruled in Bilski, and the “victory” you keep claiming in Prometheus is not what you think it to be. At all. In fact, your lack of ability to see this is why 101 Integration Expert is able to run roughshod over you ad nausem. It’s actually quite funny that you don’t get it. A normal person would.

    you are an exceedingly normal Internet patent t–b-gger.

    Typical insult – you remain truly classless.

  23. Did I ever say that you said that all litigation is bad MM?

    No. But someone must have or else you wouldn’t have gotten on your high horse upthread. So who did say it?

    the assumption of litigation being bad in and of itself is part and parcel of the singling out of that small fraction of patents that actually incur litigation costs in their enforcement.

    That’s ridiculous. Just so we’re clear: it’s Dennis who engaged in this “singling out”, correct? Do you think Dennis believes that litigation is bad in and of itself”? Is it a conscious belief, in your opinion, or is it a subconscious thing?

    Maybe you could provide us all with a list of all the caveats that we must insert into every comment and which Dennis must insert into every post so that “nobody” (like all the impressionable 12 year old kids and old ladies who read this blog) is ever “confused”.

    the likes of Techdirt and other anti-patent forces

    It sounds like they could really use your “insights” over there, anon. I think the commenters here tend to be fairly savvy. That’s likely what bugs you the most.

  24. “I’m not the puppeteer”

    This is a bold faced lie, as you have admitted to employing sockpuppets.

    Indeed I did admit doing that, on probably five or six solitary occasions over the past several years, almost always for obvious snark purposes and never to give the impression that there were other commenters out there “taking my side”. Dennis can confirm.

    What about you, anon? Did you ever employ sockpuppets?

    Are you claiming you don’t remember making those admissions

    I certainly don’t recall being asked to admit either such proposition in any context where the proposition would “self-defeat” my well-known position on Beauregard claims. “Configured to” can certainly imply structural relationships to one skilled in the art in particular contexts. But it doesn’t imply any objectively discernable structure arising from the recitation of a computer that is “configured” to do something by virtue of the manner in which it’s programmed. None of this is controvertible, by the way. It’s a fact that’s also been explained to you scores of times over the years. I am aware that the “law” can skip over such issues of fact. I am also aware that the “law” already has. We seem to disagree as to whether that’s a good thing.

    he exception to the Written Matter Doctrine is lawfully met with “functionally related.”

    I believe that is a correct statement of the “doctrine” but the doctrine is an illogical p.o.s. The term “functionally related” is a laugh. The first time this doctrine is challenged up to the Supreme Court it will dissolve like a grain of sugar dropped into boiling water. Let me know if you’d like to bet on that.

  25. 35 U.S.C. 261: Subject to the provisions of this title, patents shall have the attributes of personal property.

    Right. And where is the law that says that no law can be passed which requires the ownership or transfer of certain items of property to be made available to the public, upon request, regardless of their status as “personal” property?

    Or a law that states that any item of property whose ownership status is available to the public shall not be deemed “personal property” under any Federal or State statute?

    You seem to be aware of such laws. I’m not. I’m here to learn, though. They might exist.

    do you consider yourself a normal poster,

    If being honest and forthright is “normal,” then certainly I’m “normal.” And I don’t think many of my views on patents are radical at all. That’s one of the reasons that our fairly conservative Supreme Court’s decisions tend to align quite closely with my own views. What’s least “normal” about my comments is that they probably tend to undercut the positions that a “normal” person might expect from someone who has chosen a career as a patent prosecutor. As everyone knows, that fact has driven you and your cohorts around the bend over the years (e.g., the endless accusations that I “must be an Examiner” – LOL!).

    I notice that you didn’t answer my question to you, however. I’ll answer it for you: you are an exceedingly normal Internet patent t–b-gger. Perhaps the type specimen.

  26. I’m not the puppeteer

    This is a bold faced lie, as you have admitted to employing sockpuppets.

    How does that make me less wrong than you?

    Um, because you entirely botched the legal reasoning – as endlessly shown on your self-defeating run-ins with 101 Integration Expert.

    really have no idea what you’re talking about

    LOL – back to the “what the Sam Hill are you talking about game?”

    Really?

    How pathetic.

    Just for the record, Are you claiming you don’t remember making those admissions or are you baldly lying and saying that you did not make those admissions.

    We can clear it up – if you dare and have you deny that “configured is structure” and that the exception to the Written Matter Doctrine is lawfully met with “functionally related.”

    Please do so, so then I can paste in the exact quote showing you to be a liar. Remember though, Prof. Crouch was clear in that lying is not permitted on the new Patently-O.

    Or will you finally show an ounce of intellectual honesty?

  27. I’m refraining all the time.

    One post hardly makes always.

    Care to comment about that 90%+ abusive string within one week awhile back?

    The fact that you accuse others of what you do is hardly a “pull out the other card” on my behalf. It is a cheap trick you employ quite often. Why? I don;t know as it is quite apparent when you do so, and you only cheapen yourself and the agendas you push.

    Your post on the topic of “debatable” was not debatable. You still have offered nothing substantive. When you offer something substantive, when you address the fact that Congress has acted on this matter, when you address the fact that Congress is the governmental body charged with addressing the policies in patent law, when you address what the state of the law is and why, when you do so with substance, then we can revisist the “debatable” point.

    Yes, anyone can have an opinion – as long as that opinion is not a lie in disguise, because as we both know, Prof. Crouch has firmly stated that lies are not accepted on the new Patently-O.

    Like I have said many times (and wish that you would actually read and understand), a discussion on policy is fine, as long as the law and facts are not distorted to advance an agenda supporting that policy. You keep on forgetting that and you keep on acting like your posts are above board.

    They are not.

    My reminders to you should make that clear. That is, if you paid them any heed.

  28. you and your sockpuppets

    Oy vey! Even after your game was exposed you still can’t give it a rest? Really, anon? Dennis cleared this up for everybody already. I’m not the puppeteer. That was your responsibility.

    “You were clueless about Prometheus, that is for sure”

    Not nearly as wrong as you

    Let’s see: I predicted the result and you didn’t. I predicted that the elements that were old in the art could not rescue the ineligible subject matter. You didn’t. How does that make me less wrong than you?

    your admissions against your agenda such as “configured is structure” and the exception to the Written Matter Doctrine is lawfully met with “functionally related.”

    I really have no idea what you’re talking about but, hey, if you want to clutter up another thread with “implicit” assertions of mine that you received through your fillings*, then knock yourself out.

    make believe stuff passed off as law.

    Was the alleged prohibition (prior to Prometheus) against looking at the relationship of claim elements to the prior art “make believe stuff passed off as law”?

    Prometheus is an abomination of a decision for every reason I have pointed out.

    I don’t recall you ever pointing out a single reason why Prometheus was an “abomination of a decision.” I do remember you whining a lot and pretending not to understand the problems that arise when you allow claims reciting old steps followed by ineligible subject matter to issue. Why is Prometheus “an abomination”? Do “normal” people think that? Are you aware of any industry lobbying Congress to reverse Prometheus and pass a law which will allow methods of thinking about newly disclosed ideas to be patent eligible, just as long as any old transforming process step is recited first? I’m not. But surely you must know, anon. Surely you must know.

    *Prediction: this metaphor will soon be copped by anon and/or his twin brother, like everything else.

  29. Notwithstanding the fact that it isn’t clear which “law” you are talking about

    35 U.S.C. 261: Subject to the provisions of this title, patents shall have the attributes of personal property.

    Substance. Try it.

    Just out of curiousity, MM, do you consider yourself a normal poster, that your posting techniques are normal?

  30. anon: Sounds like more of your accusing others of that which you do.

    LOL. Exactly as predicted.

    some excuse to ignore reality, law and facts

    I’m not ignoring reality, law or facts. Again:

    1) you don’t get to decide what’s “debatable” or not;

    2) What “should” or “should not” be is what we are all free to discuss here;’

    3) I already established my position along with an explanation for my position, so you’re statement above to the contrary was incorrect (and you either knew that or you can’t read);

    4) In response to my comment, I predicted you would pull out your other card: “I know you are but what am I?”

    [you did that, as predicted: "your accusing others of that which you do"]

    You cannot refrain from attacks

    LOL. I’m refraining all the time. Even now.

  31. For the record, just because the property comes into being from a government grant is not a substantive reason to treat that property against how the law clearly states the property is to be treated. The policy was already put into place by Congress who wrote that law.

    Notwithstanding the fact that it isn’t clear which “law” you are talking about, policy discussions don’t end when Congress “puts something into place.”

    normal people

    Just out of curiosity, anon, do you consider yourself a “normal” person when it comes to patent law?

  32. It is the questions they do not answer that speaks volumes. It is when they choose not to answer those questions that shouts so loudly, I cannot hear what they type.

    Returning once again to Prof. Crouch’s Terms of Use (otherwise known as “Acceptable Use Policy” Leopold, if you haven’t looked it up yet), it is no surprise that any true dialogue suffers when agendas run wild. When those agendas drive the insults, strawmen, obfuscations, and refusal to engage in discussion of points of law and fact when those discussions lead to the obvious embarrassment of those agendas.

    The post on the fifty year letter and software is a clear indication that the agenda runs deep and is persistently subversive. Sure, some would rather have those supporting rights just shut up and move on (and let those other views continue unabated, but the anti-software patent agenda is an affront to the patent laws we have, and an attempt to change those laws by what I consider disingenuous and underhanded manner. All “earthlings” should be concerned with such tactics.

  33. GhostFacePatentAppKillah,

    I would like to have a conversation with you. Yet, you seem intent on only taking a predisposed viewpoint.

    Please read my post at 9:54 AM on Nov 02, and let’s move forward from there.

  34. , among other strange beliefs, you would prefer that the ownership of government-granted patent rights be kept secret until the rights-holder chooses to reveal its holdings.

    Actually not that strange at all and much in common with how normal people view personal property – which patents are by law.

    See, when you set out in your “policy” mode to ignore actual law and things like that, when you set out that somehow that personal property that are patents should be treated differently than personal property that are not patents because of some policy view that you want as law (but for no substantive reason), do you expect anyone to take you seriously? For the record, just because the property comes into being from a government grant is not a substantive reason to treat that property against how the law clearly states the property is to be treated. The policy was already put into place by Congress who wrote that law. You are not interested in having a discussion, you are only interested in trying to paint the current law, the current policy in that law as somehow aberrant. It is your view that is diverging from normal. Yet, you seek to hide this fact in shallow insults.

    Why you insist on calling me strange for believing in the proper treatment of personal property, as the rest of the world would treat personal property is itself understandable. You dare not treat the discussion on the merits or with substance, and thus fall back to your oh so typical insults.

    You fool no one.

  35. You were clueless about Prometheus, that is for sure

    Not nearly as wrong as you – and not nearly as endlessly posting in self-defeat on that decision after veritably dancing in the streets.

    But go ahead, crow again how you were the first to post the link to the Government’s directions on how to apply the decision – you know, the one that ignored your crrp make-up theory and employed instead the 101 Integration Expert’s integration stance.

    Further, you and your sockpuppets never answered my questions on squaring that decision with the very prior decisions that it said it was resting on.

    No real surprise there. Prometheus is an abomination of a decision for every reason I have pointed out. You have countered none of my posts on any substantive level. It was not I that struggled, and I “squelched” no conversation – I was the one seeking conversation on the substantive points.

    I do not “squelch” conversation – I set conversation in the proper perspective of actual law and true facts. Not make believe stuff passed off as law. I do not “squelch” conversation – asking you questions on substance points may have that effect, but only because you run and hide and refuse to answer questions you know shoot holes in your agenda. In fact, I quite love it when you don’t run, when you attempt to put some substance in your posts. Such recent attempts have yielded your admissions against your agenda such as “configured is structure” and the exception to the Written Matter Doctrine is lawfully met with “functionally related.” It’s a joy to know that you can no longer outright lie against these two admissions on the new Patently-O. It’s hilarious to see you attempt to obfuscate these two points when your admissions would require you to simply accept them if you had any intellectual honesty at all.

    Exactly why do you think you’re the expert on the “actual true law”?

    Thanks for asking. It’s because I know and study the law. It’s because I understand its nuances. It’s because I not only have a legal understanding, but I have a lifetime of real world understanding to balance the theories.

  36. “Still waiting for you to post one of my real lies.”

    I am still waiting for MM to apply the Official Office Guidance on “Integration” to Ultramercial’s claims. Which is kind of odd because it was MM that was the first to post the link to the new guidelines.

    “Funny, all the bluster you have, but when it comes to substance, you quite disappear (again).”

    Truer words have never been spoken!

  37. I already established my position along with an explanation for my position. Read my comment.

    Your comment is vacuous, insulting or both.

    What exactly is this “I didn’t hear you” tactic? Sounds like more of your accusing others of that which you do.

    You cannot refrain from attacks – and yet you accuse me constantly of attacking others.

    You act like you have said something of substance or proven a point – You have done neither.

    To think “but I am talking policy” – as if this is some excuse to ignore reality, law and facts, – really MM? You have to do more than just cop out to that excuse “We’re discussing “policy” is not some buzz word for anything goes – anything without a tie to reason or reality.

  38. I have never said that “all litigation is bad,”

    Did I ever say that you said that all litigation is bad MM?

    Saying I said so – now is that just wrong or is that a lie?

    Try reading what I actually wrote and try, just try, to have a big boy conversation about substantive matters.

    You might see that the assumption of litigation being bad in and of itself is part and parcel of the singling out of that small fraction of patents that actually incur litigation costs in their enforcement. You might see that no one – that is, no one but me – is pointing out the inevitable truth that litigation is actually how patents are enforced, that litigation – win or lose – in close contests means that the litigation was justified and that the ever vanishing small percentage of litigation that brings sanctions for frivolous lawsuits would be the actual focal point of wrong behavior that is so generously slapped on patents in general (and yes, not necessarily slapped on by you – but as I mentioned by the likes of Techdirt and other anti-patent forces who have OFTEN taken the less-than-full-story posts here on Patently-O and blown things out of proportion.

    That is called having perspective. Try it some time.

  39. “It doesn’t matter what you say. If it’s in reply to anon, it’s a “strawman”.

    That’s not true at all. Anon’s post have been based on the actual case law. It is anon that set the example and introduced the practice of providing proper pin-cites when discussing case law.

    I have found anon to be one of the most knowledgeable commenters on this blog when it comes patent law, and have learned much.

    I think the reason you, MM, and Ned, attack and disparage anon personally is because you can’t beat anon on the merits of actual case law. You all have become little blog bullies.

    Heck, you can’t even face me when it comes to the patent law of Integration. All three of you, including the new Shemp, LEO, have all cut and run rather than discuss 101 Integration Analysis.

    These actions on your part speak volumes

  40. regarding your documented habit of posting thousands of purely insulting comments here, often dozens a day, under different pseudonyms

    You got the wrong person MM.

    Still waiting for you to post one of my real lies.

    Funny, all the bluster you have, but when it comes to substance, you quite disappear (again).

  41. Well said, MM, A.K.A. Malcolm Mooney, Orly Taitz, Hans Blix and many more.

    The original and once only troll on the blog that posted 100 insults per day.

    The one commenter that inspired the use of filters for such derogatory terms as “su*ckie” craaaap, and much worse.

    The single commenter on this blog to ever make a jokes about child molestation .

    Yup you are a model blogger alright. Preach on MM!

  42. you might try something called perspective

    LOL. Pretty rich coming from the guy who swamped this blog for years with vapid comments submitted under scores of ever-evolving pseudoynms in order to give the impression that everybody else commenting here was a member of a “vocal minority.”

    I do have an aversion to those who do so trying to mislead others into thinking that such is actual true law

    And what exactly makes you the expert/arbiter in determining what the “actual true law” is, anon? It’s not like you have a very good track record for predicting the outcomes of the major patent cases. You were clueless about Prometheus, that is for sure, and struggled mightily to squelch any discussion wherein it was explained to you (and others) why those claims were going down. Exactly why do you think you’re the expert on the “actual true law”?

    ou might actually try reading some … of your own postings here.

    I have never said that “all litigation is bad,” anon, and I certainly don’t feel that way. So you’re busted again with that lying/smearing thing you do.

    obfuscate an otherwise fine discussion

    See paragraph above regarding your documented habit of posting thousands of purely insulting comments here, often dozens a day, under different pseudonyms. How do you live with yourself?

  43. What are the percentages for different art areas? Ex.: Are biotech patents asserted more often than software patents?

  44. “That’s debatable”

    Not really.

    That’s the thing, anon: you don’t get to decide what’s “debatable” or not. Look at what you wrote upthread: “who owns the right simply should not be a part of the equation.”

    What “should” or “should not” be is what we are all free to discuss here.

    you need to establish your position more than merely claiming it is so.

    LOL. I already established my position along with an explanation for my position. Read my comment. By the way, this “I didn’t hear you” tactic of yours is how you always respond when you don’t have a response and when, for whatever reason, you aren’t compelled to play Humpty Dumpty and pretend you were saying something else. Now go ahead and pull out your other card: “I know you are but what am I?” Or maybe you will pretend that this wasn’t a policy discussion at all but a discussion about what the law currently is. Oh wait, you tried that one already.

  45. it’s never been about “all litigation must be bad.” It’s been about “expensive litigation over patents that should never have been granted, much less asserted, is bad

    Um, no. You might actually try reading some of the Techdirt and other outlets as to “what is bad.” Or some of your own postings here.

    IF (and a mighty big if at that), you were paying attention, you would see that the area that you are concerned about is so minimally fractional and out of touch with the press it recieves. You might try something called perspective or the whole picture.

    Re: attacking. LOL, coming from the most abusive poster ever on this site, the irony would be far too much, except (as usual) you are wrong. I am not attacking anyone. I am simply setting the proper context.

    As I have said many times, I have no problem with people who express something as opinion or even want to talk policy.

    I do have an aversion to those who do so trying to mislead others into thinking that such is actual true law, or mistate facts and misconstrue law or obfuscate an otherwise fine discussion – as is often done on this blog.

  46. That’s debatable

    Not really. By law the patent is property and by law, that property is fully alienable.

    Now if you want to change the law, then you need to establish your position more than merely claiming it is so.

  47. the “all litigation must be bad” trap

    You put this in quotes but I’m not aware of anyone suggesting this. Are you attacking another “implicit” assertion that you received through your fillings?

    Having participated in discussions about this subject for many, many years it’s never been about “all litigation must be bad.” It’s been about “expensive litigation over patents that should never have been granted, much less asserted, is bad.” Why do you have difficulty simply acknowledging this up front, rather than attacking people who

    By the way, are you aware of any Federal Circuit cases where, in your opinion (not necessarily the CAFC’s), a plainly ineligible or invalid patent was asserted or misconstrued and improperly asserted by the patentee? Just curious. Because even when you were posting a hundred times a day here using twenty sockpuppets here I never heard you once complain about a single patent. I do seem to recall, however, a frequent nym-shifter always ready to defend a patent, no matter how ridiculous it was. Maybe that wasn’t you. We’ll learn more going forward, I suspect.

  48. If a suit is brought frivolously, THERE is where the fix needs to be made. Not in the patent arena.

    Are you aware of any cases where a patent was asserted where that patent was, in your opinion, plainly ineligible or invalid?

    WHO owns the right simply should not be a part of the equation.

    That’s debatable, particularly when those rights are, for all practical purposes, available to and obtained by only a tiny, tiny portion of society, whereas the exercise of those rights by that tiny minority affects everybody. Understandably, you have a different view because, among other strange beliefs, you would prefer that the ownership of government-granted patent rights be kept secret until the rights-holder chooses to reveal its holdings.

  49. Thanks for the response Paul – please note the vigor of my reply is not meant for you personally.

    STUCK IN THE WRONG MINDSET

    Paul, you are still stuck in the mindset that litigation MUST be bad.

    You are also stuck in a mindset that improved examination MUST costs thousands more per application. Why do you think that? Do you think ONLY that “more” of the “same” is what it means to have a better examination?

    It’s time to re-engineer the system. Time to make sure that the payback from every patent granted gives in kind to the reward, and STOP paying attention to the litigation aspect. We are letting the flea’s tail from the flea on the tail of the dog wag the dog. People see the dollar signs and freak out, not realizing that litigation – IN GENERAL – is expensive, as well as confusing what must be accepted as a normal way of enforcing a right with the value of the right. Attacking the enforcement system for making sure the patent system works to exchange value for right is NOT the way forward.

    PUBLIC COSTS

    and think about how much that would cost the public.

    - you do realize that the patent system costs the public nothing in operation costs, right? What exactly do you think the public pays for now?

    THINKING THE AIA WILL REDUCE LITIGATION IS PLAIN WRONG

    As for any thinking that the AIA, “ ARE some other AIA provisions that will ultimately provide better examination”; Sorry – but the monstrosity of it all – the ungodly amount of complication and uncertainty far raises the specter of MORE litigation NOT less.

    STRONGER PATENTS ARE THE WAY FORWARD

    Your statement of “Also, stronger patents will not reduce patent litigation for those defendants who will not pay for very costly licenses, or stop infringing, unless and until they are sued.
    only goes so far as those that will infringe regardless – but you miss the calculus of whether to infringe or not if the right is strong, and STILL completely ignore the fact that the threat of litigation is the only enforcement mechanism in law for patents.

    Further, your statement of “Nor will it reduce the increasing percentage of patent litigation by those NPE’s who will sue for settlement collections irrespective of patent strength” is another fallacy – you have bought into the Troll myth of trolls suing on weak patents, and “trolls” ruining the system. You focus on the “Troll” aspect and ignore the rights aspect – simply put – it matters NOT WHO owns the right. If a suit is brought frivolously, THERE is where the fix needs to be made. Not in the patent arena. WHO owns the right simply should not be a part of the equation. Property is supposed to be alienable. The entrenched powers that created the Troll hype want weaker patents and demonized holders of even those patent rights in order to do one thing – infringe with greater impunity. Change the calculus of infringement and strengthen the respect for patents in order to make the patent system the most it can be.

    Have you listened to the broadcast at link to patentlyo.com yet?
    The easiest way to make litigation diminish drastically is to make the trade-off between infringement and litigation far less appealing. Strong and clear patent rights are the best medicine.

    THE FLIP SIDE

    At the same time that I preach this message, the flip side must also be in place – strong match to meeting the requirements of novelty, non-obviousness and enablement must be in place. Someone of the likes of a PHOSITA should be able to pick up a patent and actually use the advance. Part of the problem here is that the courts in their desire to weaken patents have made PHOSITA too strong and forget that the sword of PHOSITA cuts both ways – patent applicants do not need to put into the spec that which PHOSITA can figure out. When PHOSITA becomes all-knowing of all art not only in the field of invention, but in any field that touches upon the solution to the invention (that the inventor puts together, basically expanding the universe of 103 art to match the universe of 102 art, then that same “it’s out there” satisfies what the applicant must put forth and makes for a much more nebulous – but legally satisfying – specification. The longstanding philosophy engendered by the anti-patent crowd needs to be confronted and put to a halt.

  50. Anon, much better initial PTO examination would require much better prior art searches and examinations that would easily add more than a thousand dollars in additinal costs to each and every patent application. Multiply that by the half a million U.S. patent applications a years and think about how much that would cost the public.
    The reason the AIA has a lot of post-grant material in it is precisely because it does not make economic sense to spend all that money on the more than 99% of patent applications that never get litigated even if they issue.
    Also, there ARE some other AIA provisions that will ultimately provide better examination, and somewhat less litigation, by simplifying what is prior art or not, and eliminating some present litigation issues.
    Also, stronger patents will not reduce patent lititgation for those defendants who will not pay for very costly licenses, or stop infringing, unless and until they are sued.
    Nor will it reduce te increasing percentage of patent litigation by those NPE’s who will sue for settlement collections irrespective of patent strength, relying on the more than 97% of defendants who will settle to save litigation costs long before validity issues are even addressed in patent litigation, normally only by jury trial. [The other reason IPR or ex parte reexamination is needed as an alternative.]

  51. Ah, but that legislative action was in response to the “litigation bogeyman” often trotted out by those with anti-patent agendas.

    Nobody can hide their anti-patent agenda from anon!!!! NOBODY!!!!

    Surrender, earthlings!!!

  52. Sorry Leo, you were the one that brought in the weather. Your arrow from the low road misses (again), as I don’t have to redefine anything.

    I suggest that you present better arguments if you want to win them.

  53. Equating weather and patents is a strawman.

    Nicely done. Pretending that my position is that weather and patents are equal is a very good example of a strawman. It’s completely unsurprising that you win every argument you’re in, given that you can simply redefine your opponents’ positions whenever you like.

  54. Good question, and as you note, there is no way to get statistics on patents used as threats, to get PRE-trial settlements.
    However, prior notice or a license offer does NOT have to be given to suspected infringers before suing them. Suing with no prior infringement accusation is, unfortunately, becoming more common. Especially for patent owners that want to ensure which District Court they want to be in, like E.D.TX., and to avoid a D.J. suit by the accused infringer somewhere else. Also, filing lawsuit gets faster settlements in many cases.

  55. Ah, but that legislative action was in response to the “litigation bogeyman” often trotted out by those with anti-patent agendas.

    How much of that same AIA was focused on something that would materially effect ALL patents – better examination?

    Think about it.

  56. You have some merit to the point Paul – however, you also run into the “all litigation must be bad” trap (see my post below).

    “Sneezing” at what is the mandated way of enforcing valid patent rights should not be confused with a cold.

    If you have an issue with the cost of litigation in general, that is quite another thing.

    Interestingly (and perhaps counter-intuitively to many here), the post by Prof. Crouch link to patentlyo.com points to the fact that weakened patent rights may actually be the driver for increased costs in litigation. Stronger and more clear and forceful patent rights would actually do more in reducing this “scourge,” and yet, the usual pundits would veritably cringe at that thought.

  57. Sorry, but my post you are referring to was NOT about patent litigation being a “bogeyman,” it was about AIA PGR not being a very effective alternative to the high costs of defending most patent litigation.

  58. Another very good question.

    Can we rephrase the question though to remove some of the latent anti-patent bias? After all, since enforcing the negative right of a patent can only be done through giving notice to infringers to stop the infringing activity, you cannot mean to indicate that any such activity should be considered “bad” or even out of the ordinary, right? After all, to think that trying to enforce your right is “bad” would be equivalent to sating that the right itself is “bad,” and such anti-patentism really has no place in the discussion.

    But if I may be so bold as to surmise the question that you really want to ask is “How often are patents sough to be enforced when there is no colorable argument of infringement and such is done only for a shakedown effect?

    Is that a correct restatement?

    If so, such frivolous lawsuits have other means already in place (and such frivolous lawsuits are not at all subject only to patent cases. For example, before any lawsuit is filed, the attorney must verify that a colorable case in fact is present (see Rule 11).

    Short of actual filing of suit though, I think that Rule 11 may fall short. Of course, any business that receives a “cease and desist” type of patent infringement letter should speak with their counsel, and if the letter appears to be purely a shakedown, then some appropriate response should be forthcoming. Prof. Crouch removed the DJ actions from the data – perhaps a subset featuring that data may be illuminating, as that is one such appropriate response.

  59. As Dennis notes, less than 0.1% of issued patents ever get sued on. But the defendants cost ratio of patents they are not sued on [zero dollars] to patents they DO get sued on [several million dollars] is close to infinity, hence more like 200 proof fire-water, not koolaid as you suggest, to defendants. Recent studies claim that total U.S. patent litigation costs are several billion dollars nationally. That is far more than the whole budget of the USPTO and not something to be sneezed at.

  60. I don’t think that’s a strawman, actually.

    My theory is that he uses the word “strawman” in all his posts so he can find them later. That’s what happens when you have a non-distinctive alias, or so many that your posts are otherwise unsearchable.

    It doesn’t matter what you say. If it’s in reply to anon, it’s a “strawman”.

  61. Equating weather and patents is a strawman.

    A post that provides background context to litigation is not a strawman.

    You might want to learn the difference.

  62. I don’t think that’s a strawman, actually. An example of constructing a strawman would be when one responds to a post that shows nothing more than the age of utility patents at the time infringement complaints are filed by mischaracterizing the post as one that is arguing about “rampant patent litigation,” and then repeatedly congratulating oneself for knocking down an argument that was never made.

    Or are you invoking your “common sense” rule and redefining words again?

  63. Dennis, well done for producing such an interesting chart. Are you willing to share the data set for others to fiddle with?

    The chart is not totally surprising, since, as Paul F. Morgan says, you cannot sue before grant. The hump around years 8-12 may represent the time taken before competitors realise you have something, or may represent a flurry of litigation towards the end of patent life (some infringers jumping the gun).

    What may be more interesting is to plot litigation rates against remaining term. I suspect that the picture may change somewhat as some of the year 0 litigated patents may have little term left, representing continuations of continuations of continuations carefully homing in on a competitor product.

    If you are really keen, plotting litigation rate as the z axis and first priority date and issue dates as x and y axes may reveal patterns not immediately evident from the issue date alone.

  64. Well, another question, that cannot probably be answered, which is probably even more important: What percentage of still in-force issued patents at each age date are used to threaten an alleged infringer with litigation, but never brought to court? This is the instance where an infringer just folds and pays the requested licensing/royalty fee (whether the patent is really valid or not) to the patent holder/assignee since patent litigation. We all know that litigation is much more costly in time and money.

  65. The odds of being wiped out by a hurricane on any given day are even smaller than that. We should tell those whiners in New Jersey to quit their crying.

  66. I guess you’ll be shutting down the blog now that you’ve been exposed.

    LOL.

    I’m sorry, did you have anything of substance to say, Mr. Snarkmaster?

    Or does drawing a stark contrast between a problem that affects less than one percent of patents and other problems that affect, oh, say, ALL, patents (like examination) not matter? Does putting things in context, of settling dust that gets kicked up, offend you so much as to invoke you to insult (admittedly a very low threshold) and yet more obfuscation (like somehow I am impugning Prof. Crouch??). Oops, obfuscation from you is another low threshold item.

    Perhaps, you wish to point out that Paul Morgan’s posts also point to this “litigation bogeyman” and the AIA response of post grant review is overblown as also some malicious attack on Patently-O…?

  67. Dennis: any given year a patent has less than 1/1000 chance of being asserted at least once.

    Really? Wow, that’s a really small percentage! Nobody could possibly care about something that happens so rarely. I guess you’ll be shutting down the blog now that you’ve been exposed. It was fun while it lasted, though. Thanks, man.

  68. Ok, so it’s only a fifty gallon drum of koolaid being chugged.

    We are back to a 99.8 % litigation free world (being ultra conservative).

  69. If the same patent is being asserted more than once then that makes the koolaid being chugged even greater as that means the numerator is even smaller for distinct patents in a lawsuit.

    It boggles the mind to see the “litigation boogey man” exposed for what it is.

  70. Right, any given year a patent has less than 1/1000 chance of being asserted at least once. Those are rather low odds, but one kicker here is the “at least once” element. About 1/3 of the asserted patents in the past year were asserted in multiple lawsuits.

  71. What percentage of still in-force issued patents at each age date are litigated?

    That’s a very good question.

    We have the numerator of 1780.

    What is the denominator? 178,000 active patents out there? LOL – last year alone we had what? 220,000 patents granted? Sure this was a jump, so let’s be conservative and estimate that we can say the active patent population is 150,000 times 11 (for the last eleven years). That’s One Million Six Hundred Fifty Thousand live patents as the denominator.

    Conservatively.

    Do the math. This “problem” of rampant patent litigation is based on roughly ONE TENTH OF ONE PERCENT of active patents (in straight numbers, that is 0.001 of all active patents).

    It’s time for a reality check.

    Even taking the active patents in half gives you a rampant patent litigation “problem” based on roughly TWO TENTHS OF ONE PERCENT of active patents.

    Someone is chugging a h311 of a lot of koolaid.

  72. What percentage of still in-force issued patents at each age date are litigated? Most patents are abandoned (via non-payment of maintenance fees) before 11 years. Most patents are not kept in-force the full duration of 20 years.

  73. “Portfolio maintenance” is certainly an important topic. I think many companies are wasting a lot of money by not doing good patent maintenance reviews. Note that the USPTO now plans to substantially increase patent maintenance fees, making that even more important. Foreign maintenance fees are even worse.
    But U.S. maintenance fees run from patent issue dates, not from their priority dates. It is deciding to pay, or not pay, maintenance fees that solely controls “patent portfolio maintenance strategies.” [Unless one is risking prosecution laches by using Lemelson style multiple serial continuations to delay issuance at the sacrifice of patent term?]

    I also doubt if mere patent-age statistics, from either issue date or priority date, will provide much reliable understanding of “how patent valuation might change over a patents life.” [Too many other unpredictable variables over time in consumer taste, technology obsolecence, case law, etc. And look at the surprising number of very long issued patents being sued on in the Chart above that must have little patent term left, presumably for back damages.]

  74. Delays because of access to counsel were an issue for me due to the Bilski confusion. It burned two plus years. It’s a legitimate delay if you’re a normally broke inventor and require a contingency deal.

  75. I would be interested in seeing the same histogram with the x-axis being the priority year (or age measured from the priority date). Those results would be interesting with regard to portfolio maintenance strategies and with regard to understanding how patent valuation might change over a patent’s life.

    A more ambitious analysis would be to compare histograms for different technology areas, as it might be interesting taken together with Posner’s comments.

  76. For this study, from issue date [when one can sue for infringement].
    For patent term, now usually from the original filing date].

  77. Speaking of laches, here is another interesting observation from this statistical study by Dennis. It appears that roughly 60 percent of all patents sued on are more than six years old when sued on.
    Note that: “A presumption of laches arises where a patentee delays bringing suit for more than six years after the date the patentee knew or should have known of the alleged infringer’s activity.” A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1039 (Fed. Cir. 1992)(en banc). [Laches can be also proven (less easily than with that presumption, of course) for suit delays of less than six years, with the right facts.]

  78. Interesting thought. Of course if one delays suing too long after being aware of infringers, to entrap defendants into continuing to infringe longer, to increase damages, laches will prevent recovery of those accumulated back damages.

  79. That's an interesting issue that I hadn't thought of – access to counsel as a reason for delay.  I don't think that I can really get to this information directly because the attorney-client payment contract is not normally publicly available. 

  80. I would like to see a similar chart for contingency-based cases. I’ve had clients/potential clients say, Hey, just got my patent, will you sue for me on contingency basis? My response is for them to wait long enough for there to be meaningful damages from which to take compensation. It would be useful to see that that is the norm.

  81. Thanks Dennis, that confirms the small number of patents per year [roughly only 200?] sued on in their first 9 months. Only a percentage of those few PGR-subject patents are likely to cause actual PTO Post Grant Review filing considerations by those few defendants, once PGR becomes available (for AIA-subject patents). Logically less than the PTO-published percentages of litigated patents that have been subjected to reexaminations.
    Confirming the point I tried to make several years ago, that PGR was being greatly over-sold as an alternative to, or effective avoidance of, patent litigation when it was limited to only patents in their first 9 months. [Apparently some academics and Congresspersons thought that companies will spend large amounts of money, and risk dangerous estoppels, on PTO PGR invalidity trials against brand new patents they are not even being sued on. Perhaps a few generic drug manufacturors, in a few cases, but not normal companies.]

  82. Yes, but still only 14% of all patent suits filed, which is what is relevant for triggering allowable PGR’s.

    I was surprised it was as many as that, actually. You’re definitely catching a disproportionately large number of litigated patents if you review them within a year or two of grant. What number would be high enough to satisfy you? 70% in the first year?

    If the PTO reduces its long backlogs, as intended, there will not be so many long-pendency patents with claims re-written to cover later products of others and only subject to very old prior art.

    It will reduce the instances of people’s first application kicking around so long that someone else has ripped off their technology in the meantime and they’re itchin’ to sue, but it won’t do much for the practice of deliberately keeping a continuation pending long enough to rewrite claims based on how one’s technology has gotten implemented.

    Wouldn’t it be interesting to split out continuations/divisionals from first filings/national entries/CIPs in that chart?

  83. @Bob Lelkes – JUST READ the book that I mention: Boldrin and Levines’ Against Intellectual Monopoly – there are paradoxes in life. IP laws are not necessary, and actually are harmful and in the real world hinder and deter innovation.

  84. The chart includes information from 1,780 patents that were offensively asserted during the referenced one-year time period. The data excludes patents that were only raised in DJ actions or in counterclaims.

    The chart is done on a per-patent basis rather than a per lawsuit basis. About 1/3 of the patents were asserted multiple times during the one-year time-period but only show up once in the chart. Conversely, a number of lawsuits include multiple patents asserted. In those cases each patent is separately included in the chart.

  85. Bob,

    I would disagree with you from a philosophical perspective.

    I think that you are on a slippery slope towards the Sport of Kings with the view of “but for” which is not supported by the plain reading of the Constitution’s “to author’s and inventor’s.” The general guidance for why to grant is not tied down to a “means test” or a “but for” test (with all due respect to those court decisions that indicate otherwise in dicta).

  86. Beaker:

    who will pay for R&D in fields with a high threshold for entry? The government? See Judge Posner’s suggestion to differentiate based on the amount of investment needed.

    We do not need to abolish IP laws — just trim their scope to cover activities that require such laws to encourage private investment in R&D. See the limitations on patentable subject matter in major non-North American patent regimens to see what I mean.

  87. Intellectual property law is neither intellectual nor property. This parasitic rent-seeking behavior should not be encouraged. IP laws should be abolished. Read Boldrin and Levine’s book: Against Intellectual Monopoly.

  88. Study,

    The number of active patents that were not sued on is relevant for other reasons.

    Try to see the big picture.

  89. This is a study of the ages of the patents actually sued on [from the complaints] over the recent one year period, and thus presumably roughly 2000? [a large sample statistically].

    The number of other live patents around that are not being sued on is not relevant for this study.

  90. In difficult cases such as this, I examine by a process of elimination. Once you have removed all that which cannot possibly be prior art, whatever remains, no matter how improbable, must be prior art. It was precisely this type of logic which aided me in examining the case so enigmatically titled, “The Dancing Men.”

  91. Yes, but still only 14% of all patent suits filed, which is what is relevant for triggering allowable PGR’s.
    Also, some of those patents may be newly issued, but not new. That is, continuations, divisionals or otherwise long-delayed-issuance patents?
    If the PTO reduces its long backlogs, as intended, there will not be so many long-pendency patents with claims re-written to cover later products of others and only subject to very old prior art. That should further reduce patent suits filed on patents only issued for nine months.

  92. What is the size of this data set? How many active patents were there in existence during the time of this data set?

  93. Your chart confirms only 14% for the first year,

    Where you see “only”, I see the tallest bar on the whole chart by a factor of two.

  94. Thank you Dennis!
    I had done a rough LitAlert study a few years ago for early debates on AIA predecessor draft legislation, to make the point that the limiting of a post grant review to only the first nine months after a patent issues will not be of much use, because only a small number of patents that new are sued on.* Your chart confirms only 14% for the first year, which would suggest only about 11% of patents are sued on in their first 9 months.

    *[On the assumption that the broad estoppel risk, the high cost, and the limited time to gather evidence, make a client PGR filing decision, and then file a PGR, will mean that PGR [versus IPR or ex parte reexamination] will rarely be used by other than parties actually being sued.]

  95. Dennis, any chance you could normalize this data relative to the average patent lifespan data from your prior post? It would be interesting to see how this histogram would look if you plotted % of patents asserted vs. % of patents for each age relative to the total patents of that age. So, for example, while age 0 appears to have the largest % assertion rate, the 0 age may actually have a lower probability of assertion as compared to say, patents in the 8-10 year range.

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