A Major Drop in Patent Infringement Litigation?

New patent litigation (original complaint filing) is down 40% from this time last year. The chart below comes from LexMachina whose founder, Mark Lemley, offers the speculation that the drop is largely due to the Supreme Court’s recent patent law activity — especially the fall-out from Alice Corp.  Along with Alice, we have a set of additional legal issues that favor accused infringers, including indefiniteness (Nautilus) and fee shifting (Octane Fitness).  Further, we are also well into the reign of post-issuance reviews (IPR, CBM, and now PGR) and the vast majority of repeatedly-asserted patents are involved in a parallel administrative review.  All these factors come together to provide plenty of reason for patent holders to slow-down on complaint filings. Of course, the change and the purported cause cannot be said to be ‘significant’ in the statistical sense.

PatentCases

We previously discussed the jump in April 2014 as a likely artifact caused by a threatened retroactive fee-shifting legislation.

In thinking about this issue, I was surprised to see HP’s most recent lawsuit as a plaintiff where it asserted three seemingly weak patents. U.S. Patent Nos. 6,089,687, 6,264,301, and 6,454,381.  These patents serve as HP’s attempt to control the market for replacement ink cartridges for its printers and have titles such as “providing ink container extraction characteristics to a printing system”; “identifying parameters in a replaceable printing component”; and “specifying ink volume in an ink container.”  The defendant in this case is Chinese ink-knockoff manufacture Ninestar.

The claims of these patents are clearly susceptible to Alice Corp in that the seeming points of novelty are basically very simply data structures.

The following is claim 1 of the ‘687 patent:

1. An ink-jet printing system comprising:

a printer portion for depositing ink on media in response to control signals, the printer portion configured for receiving a supply of ink;

a replaceable ink container for providing a supply of ink to the printer portion, the replaceable ink container including an electrical storage device for providing parameters to the printer portion, the electrical storage device containing:

an ink container scale parameter for selecting an ink container volume range from a plurality of ink container volume ranges,

a fill proportion parameter for specifying a fill proportion for the selected ink volume range;

wherein the printer portion determines an ink volume associated with the ink container based on the fill proportion parameter and the selected ink volume range.

Here, my understanding is that the hardware components were all known prior to the application here and the invention is simply to store two parameters on the cartridge (ink container scale parameter (specifying container volume) and fill proportion parameter (specifying how full it is)). The use of these parameters was also well known prior to the invention, but (apparently) they had never been put on an ink cartridge before.  Until recently, we would think this claim has an obviousness problem.  Now, it looks like it has patent eligibility problems as well. See HP v. Ninestar, 14 cv 4473 (N.D. Cal., complaint filed October 6, 2014).

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

62 thoughts on “A Major Drop in Patent Infringement Litigation?

  1. This event has become one of the difficult times in software patents. The issues of whether a certain computer programs really do qualify for intellectual property protection has brought confusion to software patents that resulted in the dramatic drop in patent litigation. This might lead to investors and lawyers relying more on trademarks.

  2. This article supports what I said earlier about misleadingly attributing a very large drop in new patent suits to Alice [without even additionally including the very real threat of IPRs and CBMs], from a leading member of the “patent litigation Valhalla”:

    link to mcsmith.blogs.com

  3. Not to inflame certain frequent comment Writers, but are you going to mention that Google won its mandamus petition, ordering the EDTX to stay the Rockstar patent infringement action there pending Google’s own NDCA action?

    link to cafc.uscourts.gov

  4. There is a new baseline.

    Lemley now admits that Alice makes no sense.

    Lemley now admits that Alice is new federal common law that super cedes the 1952 Patent Act.

    He is riding high…..

      1. I believe Lemley is a Stanford professor, supposedly on Google’s payroll, and supposedly (?) anti-patent. I don’t understand the supposed relationship between Lemley and the Supreme Court’s Alice decision, though.

  5. NWPA: They need to change that children’s commercial for how a law gets passed in the U.S. to include professors fabricating a reality and getting the SCOTUS to pass new case law that over-rides the current law and makes new law.

    Reminds me of this prior art that the PTO should be regularly citing:

    link to youtube.com

    1. When that was made, I already had a degree in computer science and was working for a start-up software firm that was a precursor to the Internet.

      I remember what was.

    2. Scooter listed Alaska, but not Hawaii. No wonder our economy is no longer the world’s mightiest. Lousy computers.

    3. 2:52 “He is sure to have the answer if the program is all just right.”

      And, he sticks in new software for each task.

      Please keep posting videos. They are great admissions.

    4. I think NWPA has a very good point. Having worked once in a large firm that engaged in a lot of lobbying, it is likely fair to say that the common perception that there is a problem in the patent system is manufactured.

      1. it is likely fair to say that the common perception that there is a problem in the patent system is manufactured.

        If by “manufactured” you mean that “anti-patent” Google is busy filing reams of invalid patents of its own that provide additional evidence for the broken-ness of the US patent system, then I certainly agree with you.

        Otherwise you’re quite mistaken. Many reasonable people have arrived at their conclusions about the broken patent system independently.

        But go ahead and keep blaming Google and Mark Lemley if it pleasures you to do so. Google and Lemley could disappear forever tomorrow and it won’t change a darn thing. These issues aren’t going away.

        1. The one office most respected in Washington did a study and said there was not a problem.

          Moreover, if there is a problem, doesn’t mean the new Alice legislation is the right solution.

        2. Moreover, MM, what? What is clear is that the lobbyist for Google (like Lemley) have figured out how to get the system burned down rather than a few minor problems tweaked.

  6. Dennis: The use of these parameters was also well known prior to the invention, but (apparently) they had never been put on an ink cartridge before. Until recently, we would think this claim has an obviousness problem. Now, it looks like it has patent eligibility problems as well.

    I agree.

    Putting information on an previously existing “interchangeable” component of a device, wherein the old device “reads” that information, is a concept that is itself older than the hills. Limiting that concept to a particular field or limiting it to particular information that is read doesn’t get you out of swamp.

    Also the step: wherein the printer portion determines an ink volume associated with the ink container based on the fill proportion parameter and the selected ink volume range

    isn’t much of a limitation for a device claim, is it?

    1. Little surprised this got through, given that you could cite a car gas tank system and a replaceable print cartridge and call it a day.

        1. Especially since you need to know the amount of gas in your gas tank but don’t really need to know the amount of printer ink left — you can see that the printer is running out of ink because the printed pages will have less ink.

          1. Especially since you need to know the amount of gas in your gas tank but don’t really need to know the amount of printer ink left — you can see that the printer is running out of ink because the printed pages will have less ink.

            You can tell that your car is running out of gas when it starts sputtering, why measure anything then?

        2. Printing *is* a chemical and mechanical art. That’s why HP advertises to employ patent attorneys who are chemists by academic training.

        3. How would a computer engineer know to look into the chemical/mechanical arts?

          Right. Because computer engineers were born yesterday and live inside paper bags without oxygen.

        1. A gas tank does not report its scale parameter.

          How do you think the car estimates how many miles you have left? It measures the level of gas in the tank (a fill proportion parameter) and multiplies it by a size parameter of the tank. You’re just using information entered upon build (since a gas tank isn’t interchangable) rather than reported by each tank. You do have the scale parameter reported when you first buy the car (gas tank holds X gallons). Again, it just isn’t digital, which for 101 purposes is irrelevant and for 103 purposes seems to tailor-make an obviousness rejection. I assure you that encoding text in digital form was well known prior to any patent that would be in force today.

          Or let’s ignore that and point out that simple, well-known math would motivate someone who has a replaceable inkjet cartridge (admitted prior art) and a fill proportion (gas tank citation) to measure one of the other values to find the other. One would be motivated to find the size of the cartridge because it allows the computation of the total ink fluid which allows an estimate of the number of pages left that you can print, which is useful for business expense planning. One would be motivated to do the opposite (find the number of pages you need to print to compute the size of the ink cartridge you need) for shopping planning. One would be motivated to include that information on a digital chip to assist in those calculations.

          Obvious things are obvious. Measuring the amount of liquid in a container is obvious, and if this patent was examined under KSR it wouldn’t have been granted. Obviousness doesn’t have to be proven in any particular way. Trying to argue that things that are clearly obvious haven’t been proven (or are being distilled, or claim as a whole, however you’d like to put it) just makes you look silly. HP is about to look silly.

          1. Sidenote – I assume HP is asserting other claims, because if they assert only this one or similar scopes after Alice I would award costs to the other side. Alice directly controls, since calculation of volume is a) math and b) old and the only thing this adds is field of use (ink printers) and field of application (do it on a computer). Just so I don’t hear a distillation issue – the reporting is an insignificant data gathering item (the data gathering occurs, then is stored and is later reported) a la Mayo or Flook.

  7. 15% drop first nine month total year over year (straight totals).

    And the tail of the flea on the tail of the dog wagging the dog story here: in a rough ballpark manner, taking the patents granted last year alone, and the last twelve months of lawsuits (inflated due to AIA joinder rules, among other things), we have a less than 2% patent to lawsuit ratio.

    Now that ratio drops (dramatically) more when a couple of other items are factored in – like counting not just one year of fresh patents, but the other nineteen years of patents that may be still active, and then considering that some patents are sued on more than once.

    At what point (perhaps less than a half percent) does the spector of “Tr011” and the boogeyman of “lawsuit” start to lose its “scare” factor with anyone with a reasonable mind?

    1. “At what point (perhaps less than a half percent) does the spector of “Tr011″ and the boogeyman of “lawsuit” start to lose its “scare” factor with anyone with a reasonable mind?”

      When the patent system is fully confined to the useful arts? I’m just going out on a limb here.

      1. I am unsure of what definition of useful arts you have in mind, 6, but it surely not the one that accords with patent law.

        1. He just wants to exclude that 20-30% of our economy that apparently to 6 isn’t useful. I think he should take you up on your suggestion and stop using modern computers and software, and see how useful of a day he has.

      2. So when the patent system is fully confined to the useful arts it is then appropriate that a lawsuit has no scare factor to reasonable people?

        It seems you are admitting that the patent system should provide no useful protections to legitimate inventions.

        1. It seems you are admitting that the patent system should provide no useful protections to legitimate inventions.

          I’m going to go way out on a limb and suggest that nobody is “admitting” any such thing.

    2. anon: we have a less than 2% patent to lawsuit ratio.

      We have also more patents in force right now than in any time in the history of the country. Also, most of them are invalid.

      [shrugs]

      Speaking of ratios, what is the ratio of patents in force in the US right now compared to the number of patents in force in, say, 1970? How does that number compare to the relative size of the US population then and now? Just curious. For additional interest, you could also compare the rate of US population growth between, say, 2000 and 2015 with the rate of grown in granted patents over that same period.

      At what point (perhaps less than a half percent) does the spector of “Tr011″ and the boogeyman of “lawsuit” start to lose its “scare” factor with anyone with a reasonable mind?

      Most reasonable people don’t ever want to be accused of patent infringement, particularly when the patent is invalid should never have been granted in the first place. Let’s clean those many thousands upon thousands of invalid patents out of the broken patent system, do our best to make sure that they aren’t coming back, and then we can get back to being super concerned about how to entertain all those poor, oppressed, wealthy “little guys” who can no longer sit at home and “innovate” claims describing, in functional terms, what their future target is likely going to be marketing a few years down the road.

        1. The presumption of validity speaks opposite of your accusation – do you have any hard evidence for what you claim?

          You mean besides the continual tossing of claims that has been going on for the past few months that you personally and others on this board have been completely freaking out about?

          1. You quite miss the point of the legal discussion Random Examiner.

            You want to focus on the ends, when the hubbub has to do with the means.

            Let’s start this discussion with the law: 35 USC 282. Please review link to law.cornell.edu and let me know when we can proceed.

            1. You miss the point, it’s not a legal discussion. MM is arguing that most patents are invalid, and that there are thousands of bad patents, you asked him if he had any hard evidence for that claim, and a statistical sampling suggests that he is correct. 282 wasn’t just enacted, therefore the statistics already account for the presumption of validity.

              If your argument is procedural, that they are valid because they have a presumption and they haven’t yet been found to be invalid (though if the analysis was done they would be) I will admit what every adult here already knows, that the law does not proactively act universally and immediately. That point is largely moot, as a de facto invalid claim which has not yet been proven so (but would be if tested in court) does not in fact confer any rights upon its holder. To have a right there must be a remedy for its violation, and no remedy will come from the infringement of a de facto invalid claim.

      1. The patent system is however it is today, because the value of intellectual property has increased proportionally with the increase in innovation and economic productive over the past 40 years.

        When there is so much money in the technology, why is everyone surprised that the monied interests spend so much money to protect it (often arguably obtaining questionable patents) and at the same time, the monied interests are beseiged by people trying to take that money?

        Its better than monied interests building castles on hills to protect themselves from armed invaders, and having to sally forth in full body armor, no?

        The court system exists, among other reasons, to determine which patents are worth their salt and which aren’t, no?

        1. The court system exists, among other reasons, to determine which patents are worth their salt and which aren’t, no?

          The court system is not the only system used by the public for achieving that goal.

          1. Need I remind you of the quote from Lord Jacob and what a good judge should be about?

            Especially a judge reviewing statutory law that has been clearly demarcated as to which branch of the government has authority to write the law.

    3. At what point (perhaps less than a half percent) does the spector of “Tr011″ and the boogeyman of “lawsuit” start to lose its “scare” factor with anyone with a reasonable mind?

      Probably after the point where there’s multimillion dollar verdicts on stuff a layman could think up. All you have to do is look at HP’s patent, which they have just asserted, to see we can’t be done yet.

      “Let’s print the liquid volume on the packaging so we can, you know, conform to US law”

      “Wait wait, let’s put the same information IN DIGITAL FORM and bam, instant monopoly.”

      1. Random,

        I do not see anything but strawmen and empty rhetoric here. If you want to have a conversation, you will have to post something meaningful.

  8. Isn’t the availablity and present rate of filing IPRsplus a few CBM’s roughly 1/5th of the previous rate of filing new patent cases? Isn’t that plus the Sup. Ct. tightening of case law against both ambiguous claims and baseless lawsuits an equally important factor in a new patent suits reductions? Especially D.J. invalidity attacks, when IPR is much cheaper, faster, and more effective?

    1. I agree Paul. There are probably some ways to determine that. With IPRs for example, how many are not currently being litigated? Maybe those should count as litigation (probably filed as a pre-litigation negotiations fell apart).

  9. I will also say that it would not surprise me if we saw a 40% drop in patent filings with the next 2 years unless Alice is throttled.

    By the way, apparently Lemley”s biggest fear is that Alice is inconsistent like the 101 case law in the 70-90’s that it may end up just being thrown out. But, Lemley is riding high. He has succeeded against all odds and legislated at the SCOTUS. They need to change that children’s commercial for how a law gets passed in the U.S. to include professors fabricating a reality and getting the SCOTUS to pass new case law that over-rides the current law and makes new law.

    1. But, Lemley is riding high. He has succeeded against all odds and legislated at the SCOTUS.

      Oh please, I have been saying the same thing. Getting the Supreme Court to apply precedent isn’t riding high nor is it succeeding against all odds.

    2. Lemley is riding high. He has succeeded against all odds

      I’m pretty sure that Lemley is just one of many people who recognize a problem when they see it.

      People have been predicting these changes for a long time because, well, kinda necessary, to say the least.

  10. Be interesting to break this out by type of patent. Are the pharma patents down as much as the software patents? That would tell the story.

    I echo what iwasthere said too. Lemley has definitely made it a sport of kings.

  11. So only the big guys can toss around patent enforcement to keep market share. Exactly the consequence of the Court’s so called reforms. A patent system to only help the bug guys. Mark, your statists paymasters should be saying: “Job well done.”

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