Patent Cases Pending as of January 1, 2015

By Jason Rantanen

In November, I wrote about a decline in patent suits pending in district court.  Using Lex Machina, I recently put together an updated set of data that includes patent cases pending as of December 1 and January 1.  The figure below shows a continued drop in cases through November, followed by no real change in December.   The lack of movement for December is the result of a modest increase in new case filings and a substantial drop in terminations relative to the previous month.  (Keep in mind that the underlying data is highly dynamic: in December, for example, there were about 380 new case filings and about 400 terminations of existing cases.)

Pending Patent Cases 1-1-2015

Some folks have asked about the effect of co-pending PTO proceedings.  Lex Machina doesn’t presently offer a way to easily determine whether a proceeding is stayed pending an administrative proceeding at the PTO, so I can’t directly count these stays in the graph.  But my intuition is that they aren’t going to make an enormous difference.  Love & Ambwani report that between September 2012 and September 2014, courts granted litigation stays in 140 suits where there was a co-pending instituted inter partes review.  For comparison, the drop in pending I just don’t see these stays making a significant impact on the above graph regardless of whether they are counted as open cases or terminated cases.

Thanks to my research assistant, Alex Lodge, for collecting the data for the above chart. 

Comment policy: At the suggestion of a few folks, I will try an active moderation policy on this post.  Posts containing name calling, character attacks, or an unnecessarily aggressive tone will be deleted, as will excessive commenting.

52 thoughts on “Patent Cases Pending as of January 1, 2015

  1. 10

    I think the big picture on this post and the data is how long will it take before the effects of the AIA work their way through the system. I think it has a while to go. Dist. Ct. judges need to get more experience with the post grant reviews. I think a good question to pose is how can the post grant reviews be improved to lessen the workload of the dist. courts.

  2. 9

    Lemley is the founder, which means the credibility is less than zero.

    It’s great to know that we can still launch personal attacks on public figures in these threads, Dennis, and defend those attacks with more ad hominems.

    I wondered about that. I presume it’s not a one way street or a special privilege of Night Writers. Could you let us know?

    1. 9.1

      I’m applying a factor-based approach to moderating the comments. The factors I’m considering are:

      -Level of aggressiveness of the comment
      -Relevance of the comment to the topic of the post
      -Abusiveness of language used in the comment.
      -Degree of personal rancor or malice in comment
      -Number of immediately sequential posts that make the same point

      No one factor is dispositive, and even if one factor weighs in favor of deleting, the other factors may balance it out. In this case, NWPA’s comment was on topic and, although it was critical of a person, it was not an argumentum ad hominem; in other words, NWPA was not attacking the argument by attacking the speaker; rather, the commentator was attacking the veracity of a fact by identifying biases that could affect that data. So I left it, along with your response.

      For what it’s worth, I disagree with NWPA’s point. Lemley’s views are much more complex than most on these boards give him credit for. In any event, since Lex Machina is a business, it seems to me that it would be in its best interest to produce accurate data; if their data is shown to be inaccurate, it undermines their business.

      1. 9.1.1

        Thanks for the clarification, Jason. I strongly disagree with your conclusion in this particular instance (“NWPA was not attacking the argument [or the data in this case] by attacking the speaker”) but I do see where you’re coming from.

      2. 9.1.2

        As a relatively new poster, I like the moderation and I thank you for your effort. I’ve been relatively surprised by the amount of rancor on this board, and have had to temper my own reactions in order to avoid saying something I regret (sometimes I am more successful at this than at other times).

        I also like the transparency that you’re giving. Too often, because reasons aren’t explained, we get upset because of the unknown, rather than understanding if we knew. Obviously not everyone will agree with every decision you make all the time, but I wanted to make sure that the effort was not unnoticed.



          As a follow up from below, here is a snippet from the Wiki page for normalization:

          n statistics and applications of statistics, normalization can have a range of meanings.[1] In the simplest cases, normalization of ratings means adjusting values measured on different scales to a notionally common scale, often prior to averaging. In more complicated cases, normalization may refer to more sophisticated adjustments where the intention is to bring the entire probability distributions of adjusted values into alignment. In the case of normalization of scores in educational assessment, there may be an intention to align distributions to a normal distribution. A different approach to normalization of probability distributions is quantile normalization, where the quantiles of the different measures are brought into alignment.
          In another usage in statistics, normalization refers to the creation of shifted and scaled versions of statistics, where the intention is that these normalized values allow the comparison of corresponding normalized values for different datasets in a way that eliminates the effects of certain gross influences, as in an anomaly time series. Some types of normalization involve only a rescaling, to arrive at values relative to some size variable. In terms of levels of measurement, such ratios only make sense for ratio measurements (where ratios of measurements are meaningful), not interval measurements (where only distances are meaningful, but not ratios).
          In theoretical statistics, parametric normalization can often lead to pivotal quantities – functions whose sampling distribution does not depend on the parameters – and to ancillary statistics – pivotal quantities that can be computed from observations, without knowing parameters.

          To continue our dialogue, I would note that your view, while indeed perhaps interesting, does not fit any of the meanings of “normalization.”

          Instead, what your view does is more in the line of attempted segregation and selection of a certain type of subset of the data. That’s why I asked if you were aiming for a subset that is more “market-active.”

          And yes, trying to find the “right” parameters for such a subset would require some not small additional effort, I also pointed out that your subset necessarily introduces a not small degree of subjectivity.

          On the other hand, as reinforced by the Wiki (thanks again Malcolm), my objective and truly normalizing view would provide a higher clarity as to the overall trend in the selection of the legal recourse of enforcing patent rights by way of litigation.

      3. 9.1.3

        On the Lex Machina website was a post regarding ending software patents with a cheery attitude, which also presented a method of doing so with limiting functional claiming. This is enough to question the company. (And seriously, it is a company, but Lemley is clearly a driven man and if the company is just one of many of his assets, it could clearly be used to further other goals. Just as an example, how much does Lex Machina make compared with the litigation fees Lemley makes? )

        Moreover, I am questioning the selection and presentation of the data and not the accuracy. I am not accusing him of providing false data. Additionally, I understand Lemley’s views, and my complaint with Lemley is not his views on patentability, but with his methods and the accuracy of his factual scientific views of information processing.

        Moreover, Lemley is effectively like a politician. He is trying to change the law through different interpretations of the common law and statutes rather than through Congress. I think by definition that makes him a judicial activist. Additionally, Lemley does things like go to my clients and give presentations where he says that he thinks that almost all software patents are now invalid. So, he is presenting a viewpoint in a highly fluid area of the law and trying to get his viewpoints accepted.

        So, I think —at the very least–I have plenty of evidence to back up my statement that I believe Lemley to be a judicial activist.

        And, I think these complaints from MM bring up a bigger issue.

        MM goes on to question whether software has structure with “[t]hat would make him more credible, not less. What’s the structure of “if X then Y”? How much does it weigh?”

        This is typically how he hijacks a thread. First, this is a point that he argues whenever “software has structure” is written in a post, MM presents a vigorous counter argument. It is a form of heckling. It is ridiculous for him to try to argue this point each time it is presented no matter how it is being used.

        Second, MM’s arguments lack any basis in science. He never presents any evidence or coherent argument, but rather anecdotal puzzles that puzzle only the scientifically illiterate. In contrast, I present scientific arguments like posts from Mano’s computer architecture book. And note that even if someone thought there was a legal argument that software had no structure that blasting ever post that says software has structure, is disruptive and harassing behavior.

        Moreover, MM questions factual comments such as there have been articles written about the new trade secret law that are concerned about new causes of action against tech workers in CA. This is a factual issue. MM will deny this and do no work to even look for such an article. If I post a link to the article, he will two weeks later deny it again. This is the type of behavior that clutters this board. (And, factually there have been articles that fear the new proposed laws will seriously harm innovation.) And, by the way, this is not a minor point, but goes to the benefits of patents.


          On the second half of your comment (beginning with “And, I think”): You’ve said your piece. I’ll apply the same policy as for anon and MM: any further posting by you on this topic under this post will be deleted. You’re welcome to continue to debate the “Lex Machina exhibits a bias” point, as long as you do it in a non-abusive manner.

          For what it’s worth, I put together this post, not Mark Lemley. Nor have I discussed the post with Lemley. In collecting the data for this post, I had my research assistant use standard field pulls from Lex Machina.


            Let me add to that “saying of a piece” by noting that it is important to keep track of who is saying what in regards to the polemics of anti-software patent battles.

            For instance, the reputable retired Chief Judge Michel had a few insights that relate to this ongoing battle at:

            link to

            (the comment by Curious is on point as well)

    1. 8.1

      A business mode involving risk/reward that is encouraged by making patents weaker and infringement of patents along the lines of efficient breach of contract favors the established and powerful entities at the expense of innovation that may disrupt those entities.

      This is NOT a new concept.

    2. 8.2

      “Patenting the solution, and allowing others to use the patents for a fee, helped drive Walker’s success.”

      That’s interesting. I didn’t know that solutions were a statutory category. Last I checked, patenting the entirety of a solution sounds an awful lot like patenting an abstract idea.

      “So the idea of a demand collection system was invented in that lab whereby people could make an offer, secured by a credit card, for a unit of supply. And so their demand would become visible for a brief period of time, and sellers could choose to either harvest that demand and fill it or let the demand expire unfilled. And that mechanism, that solution, is what led to a set of patents we applied for and were granted. ”

      And there you have it, he patented the idea.

      “I learned very quickly that nobody wanted to license my solutions”

      Because they’re not in the useful arts and nobody respects your “idea patents”. Maybe you have a few in the useful arts you could expound upon?

      “because the nature of the licensing system in the United States is such that companies do not want to license patents because they’re not particularly clear what that patent covers or doesn’t cover,”

      The only fix for the lack of clarity in your patents is better draftsmanship on that fellas part.

      “That’s not why you’re deterred. You’re deterred because if you license the patent and your direct competitor doesn’t, you have a cost he doesn’t.”

      That’s funny he just got through saying people were deterred by the vagueness. But ok, looks like he’s on a new topic now.

      “In many cases what companies need today is a technology strategy on how it’s going to reach out and find other companies that have solutions”

      This guy is always focused on “solutions” instead of “inventions”. 700 patents to his name, and he still doesn’t have respect for inventing.

      “It’s especially difficult the way the patents are written by lawyers to understand what the claims cover or don’t cover. ”

      I don’t see him suggesting we should ban the federal circuit so that lawlyers will stop addressing patents to them with love.

      “We have spent trillions of dollars inventing things and 95 to 98 percent of all patents have yet to make their first dollar of licensing revenue, and it’s not because 95 percent of patents aren’t useful or valuable, it’s simply because the licensing system is driven by the lawyers as opposed to driven by the business people.”

      Amen to that bro. Find a way to cut the lawlyers out, get the abstract ideas/software/business methods out of the system, and you may just find yourself respected.

      “Without having a licensing negotiation, you would agree, “I would make certain of my patents available for no-fault licensing.” So the first thing we’re going to do is get rid of the idea that we have to figure out if you’re infringing or not infringing, and we’re gonna have to get rid of this thought that it takes a lawsuit in order to make a license.”

      I like it. Continue.

      “That’s how businesses grow. They grow by finding adjacencies, opportunities, inventors and solutions. They don’t grow in a courtroom when you have to get into a fight about who should be licensing and who’s infringing whom.”

      I wish him the best of luck.

  3. 7

    I wonder what conclusion to derive from this statistics, have people become honest and always give due respect to the patent holder leading to a decline in patent related cases since month?

  4. 6

    Sorry to go off topic, but I was just reading in Harmon on Patents (which is now provided to examiners btw as reference material).

    It states:

    Ҥ2.9 Claim Construction: Markman Proceedings
    The unanimous decision of the Supreme Court (in a case of that name) 49 that claim construction is a legal matter exclusively within the province of the court has given rise to so-called Markman hearings or proceedings. These claim construction exercises are held in virtually all patent infringement cases that address substantive patent law issues, inasmuch as claim construction will normally control the remainder of the decisional process.

    The terms “construction” and “interpretation” are interchangeable in this context. 51”

    ^note that last part about interchangability.

    Though I can respect TJ and some other people wanting to draw a distinction between the two terms it appears to have not been so as of not long ago.

  5. 5

    >>September 2012 and September 2014, courts granted litigation stays in 140

    I would add too that this is at the core of how the AIA is going to affect district court litigation. Are the district courts going to stay litigation and send it to the PTO? That is the key question. I think the answer is yes. I think it will take more time before the district courts start consistently doing this, but that closely following this issue is the key.

    My guess: within 2 years that almost no patent will be litigated for infringement before coming out of a post-grant procedure at the PTO.

    1. 5.1

      I think too that understanding the dynamics of this brings up Ned’s complaint of standing. What the district court’s probably want is that the P has to file a post-grant review and then be subject to estoppel so that the district court case is simplified. This is broken when companies can get around this by getting post-grant reviews filed by shell companies.

      The key to this is understanding how a district court judge can use the PTO to off-load the work of validity of a patent to the PTO.

  6. 4

    >>September 2012 and September 2014, courts granted litigation stays in 140

    Seems to me that we are probably not seeing the full effect of the AIA. It seems to me that the IPRs and CBMs have since Sep. 2014 not only picked up in their filing, but also they have become more respected by the dist. court judges. I think that there was and is a learning curve there that the new post-grant proceedings are worth waiting for whereas the old ones were not.

    So, how many since Sep. 2014? What does that rate look like? And isn’t this then like only a year of cases in the dist. ct. pipeline? And if the stays have vastly increased which is anecdotally what I hear, then we need a graph which cases split between those stayed and those not.

    So, the big point it is too early to see the effect of the post-grant reviews on district court cases. Again, from what I hear district court judges are just starting to take the AIA post-grant reviews seriously.

    (And don’t trust anything from Lex Machina without spending a lot of time analyzing the data. Lemley is the founder, which means the credibility is less than zero.)

    1. 4.1

      NWPA: Lemley is the founder [of Lex Machina] which means the credibility is less than zero

      I don’t get the connection. Can you provide your evidence? It seems to me that Lemley has quite a bit of credibility in the patent world.

      Regardless, I seem to recall something posted by Dennis immediately above your comment: Posts containing name calling, character attacks, or an unnecessarily aggressive tone will be deleted, as will excessive commenting.

      Golly, I can’t wait to see how this turns out.

      1. 4.1.1

        Well, let’s see. He claims that software has no structure for one thing. For another he has made no secret of the fact that he would like to end protection for software patents, and he is clearly a judicial activist.


          He claims that software has no structure for one thing.

          That would make him more credible, not less. What’s the structure of “if X then Y”? How much does it weigh?

          he has made no secret of the fact that he would like to end protection for software patents

          When did he say that?

          he is clearly a judicial activist.

          Your ad hominem attacks aren’t evidence of a lack of credibility.

          n the Lex Machina website there was a page that talked about how limiting functional claiming would be a good route to finally end software patents (which were characterized as overly broad.)

          No evidence of “zero credibility” there either.

          we have a person that is a judicial activist

          Repeating the ad hominem doesn’t get you anywhere.

          wants to limit patents

          Everybody wants to limit patents. That’s no evidence of “zero credibility.”

          look very closely at anything produced by Lex Machina

          Now you moved the goalpost.

          It took you three comments to say pretty much nothing except for the implicit admission that your original statement was over the top. Seems excessive to me.


            Just don’t respond to my posts and I won’t respond to yours. Everyone (but you) will be happier.


            How much does “if X then Y” weigh ?

            It weights as much as the digital logic on a chip that performs “if X then Y”

            So, do you think that digital logic on a chip isn’t patentable too ?

            To be logically consistent, you must.

            I have studied both electrical engineering and software engineering, and the only difference is the specificity of the description. The only reason to put something on chip in the first place is to make it run faster if you don’t mind not being able to update it.


              I was wondering if the “how much does it weigh” was going to be moderated out under the excessive posting rule, seeing as that non-sequitur of a putdown has been often repeated by a select crowd who know the controlling law concerning the exceptions to the judicial doctrine of printed matter.

              But since the comment remains, perhaps Malcolm can actually provide an answer to this question: How much does the Morse ‘space’ weigh in Morse’s allowed claims?


                “crowd who know the controlling law concerning the exceptions to the judicial doctrine of printed matter”

                Which of those CCPA and Fed Cir cases remain good law after Alice and Mayo? None?

                If “just do it on a computer” was not good enough, how could “just put it on a substrate” be good enough?

                1. They ALL remain good law.

                  Note that I pointed this out explicitly before the Alice decision came out because of the positions taken by both parties to the case (the stipulation that the statutory category aspect of 101 had been met), the issue of the exceptions to the judicial doctrine of printed matter was NOT a case or controversy before the Court.

                  Pay attention.

                2. “the issue of the exceptions to the judicial doctrine of printed matter was NOT a case or controversy before the Court”

                  So, the SC has to explicitly say “those CCPA and Fed Cir cases regarding printed matter are no longer good law” for some to connect the dots?

                  While I can appreciate a good ipsis verbis argument, this seems a little far fetched of a position. The information itself of printed matter could be easily argued as abstract, and the medium upon which it is printed non-novel (in the vast majority of cases). This analysis ends with the printed matter being non-eligible.

                  One must apply holdings to new fact patterns, not expect a new holding for every fact pattern.


              do you think that digital logic on a chip isn’t patentable too ?

              To be logically consistent, you must.

              The answer to your question depends entirely on how this chip is described, as you acknowledge when you say:

              the only difference is the specificity of the description.

              Of course, it’s not only the “specificity” but the “kind” of description that matters. We are talking about patent law after all.

              Chips are old. Very old.

              You have new composition of matter that you want to call “a chip”? Tell me what the new structure of that new chip is. Anybody can dream up a new function for an old chip. That’s not why we grant patents.

              You are probably already aware that logic itself (e.g., “if x then y”) isn’t eligible for patenting merely because it’s written down on an old piece of paper. The same principle applies to chips. That’s called being “logically consistent.”

              Welcome to the conversation, Mark!


                ^^^ excessive (and false) comment regarding several items:

                – the what does it weight fallacy

                – the (implicit) must be claimed in an ‘objective’ physical structure option being treated as NOT an option

                – the “Dr. House” style only the first computer could be patented meme.

                (is this a ‘nice’ enough way to highlight the excessiveness of repeated past fallacious posts?)

                1. I’ll leave it, but additional comments on this topic on this post by either of you will be deleted.

      2. 4.1.2

        And on the Lex Machina website there was a page that talked about how limiting functional claiming would be a good route to finally end software patents (which were characterized as overly broad.)

      3. 4.1.3

        So, MM, we have a person that is a judicial activist that wants to limit patents and is producing data analysis of patents. That is a good reason to look very closely at anything produced by Lex Machina and particularly when new legislation is being considered that would further limit patents.

        Thanks for asking.

  7. 3

    Thanks for posting the data, Dennis.

    And this reminder is useful:

    (Keep in mind that the underlying data is highly dynamic: in December, for example, there were about 380 new case filings and about 400 terminations of existing cases.)

    And for a longer-term perspective on the bigger picture, see Figure B here:

    link to

    Still quite a ways to go before “normal.” Will the drop be more “precipitous” than the rise? Stay tuned …

    1. 3.1

      The misleading apparent big suit filing increase a couple of years in that Lexmachina Figure is due to the AIA anti-joinder provision preventing multiple different defendants from being sued in the same suit. I.e., this is mostly just the result of having to split up patent suits into separate suits for the same number of defendants.

      1. 3.1.1

        Paul, Figure B shows significant increases over the previous years prior to the enactment of the AIA (September 2011). That was due in part to the rise in suits filed by so-called “frequent filers” (2008-2011) and not the AIA joinder provisions.

        In any event, litigation rates are just another symptom to keep an eye on when monitoring the health of the patent system. It’s good to see any return to someting resembling normalcy, regardless of how modest it is.

  8. 2

    I am curious as to what the graph would look like if normalized by the number of available patents for which a law suit could be brought.

    After all, would that not be a better guage of how active enforcement through the courts is trending?

    1. 2.1

      I am curious as to what the graph would look like if normalized by the number of available patents for which a law suit could be brought.

      How do you determine “the number of available patents for which a law suit could be brought”?

      1. 2.1.1

        I would think that the calculation would be rather straight forward, given that patent grant numbers are known, the number of maintenance fee payments are known (the number of patents reinstated after missing payments is quite negligible) and the number if patents naturally expired but within the six year zone of possible collections are each objectively ascertainable.


          I think perhaps MM was referring to the fact that it would be difficult (and extremely time consuming) to determine how many patents out there are currently in force AND have a possible infringement claim. That is, each patent would need to be looked at, scope determined, then determined who is possibly infringing under Rule 11 standards (b/c otherwise cases wouldn’t be brought, right?)



            Not sure I see the point about “possible infringement claim.”

            Any and all patent claims are possible to infringe.

            Are you thinking of “likely to be infringed given market activities…?”

            I do not think that is an appropriate measure.


              Why is it not an appropriate measure to look at how many patents are colorably infringed if we want to “normalize”?

              Wouldn’t it be important to know that data if we wanted to see whether patent lawsuits are up or down? For example, we could say there are X patents out there, but only X-Y are colorably infringed, and here’s the number of lawsuits that exist for that subset (lawsuits can’t be brought on the rest).

              I could see this causing very different results through time, leading to different conclusions on whether patent litigation is up or down.

              For example, when there were fewer patents granted, you could hypothesize that it would have been easier to avoid infringement because a company could engage in a pre-development patent clearance, making the number of colorable infringement suits much less than the number of actual patents in existence. Given the number of patents now, in many industries, pre-clearance is difficult if not impossible to do before innovating. So the number of colorable claims may be relatively higher. How many patent suits were filed then and now would then lead to different “conclusions” as to the state of patent litigation right now vs. through time.

              This sort of analysis, however, seems extremely difficult to do and would require almost omniscience as to our economy and how it functions.

              Alternatively, we could assume the number of patents for which infringement claims could be brought has remained constant through time, but like the raw numbers presented here, I’m not sure it leads to more robust data.


                Sorry Jane, still not seeing it.

                My post is norming for the reason given (the available population). I don’t get what your norming gives you. Some type of “preferred”population…?

                1. I don’t get what your norming gives you.

                  Jane is proposing is a “normalization” that is different from the one you proposed.

                  There is nothing “inappropriate” about what Jane proposed.

                  For what it’s worth, Jane, your thoughtful comment was perfectly clear to me.

                  More info on normalization here: link to

                2. anon,

                  honestly, I didn’t answer your question because I wasn’t sure what else I could add. Perhaps this is a better way of phrasing it: whether patent litigation is going up or down in terms of sheer numbers doesn’t consider information on how many patents are being colorably infringed as a proportion of all patents. The number of existing patents doesn’t tell us, as a data point, how many patents are being colorably infringed, nor the % of patents being sued on that are colorably infringed (call it x_i, for all i in the years). Comparisons of this number (e.g. x_1941 v. x_2014) would to me be the more interesting number when comparing then and now, in terms of whether patent litigation is on the rise. It would also lead to interesting hypotheses (e.g. like the one I said before, regarding pre-clearance) depending on whether x_i was x_i+n. That is, the normalizing by the number of possible infringement claims could lead to interesting theories as to what effect the explosion of the number of patents has actually had in terms of litigation rates and on the effectiveness of our patent system more generally.

                3. Gosh gee willickers, the normalization is different.

                  Yes, that the offered normalization is different is patently obvious.

                  The question was – why that normalization?

                  That question remains unanswered, even given Jane’s additional attempt, which just provokes more questions; questions such as What does ‘colorable’ mean? And from whose vantage point is that determined?

                  ‘Colorable’ is a nice sounding word, but is not a definite one. But my choice for norming is a definite one, an objective one, and notwithstanding protestations of “too difficult” is not too difficult (previous work by Katznelson and even Crouch show this).

                4. “anon”: The question was – why that normalization?

                  That question was answered by Jane:

                  the normalizing by the number of possible infringement claims could lead to interesting theories as to what effect the explosion of the number of patents has actually had in terms of litigation rates and on the effectiveness of our patent system more generally.


            Thanks, Jane. Those considerations, among others, would seem to be relevant to this “normalization” (at least if that “normalization” is supposed to result in a “better guage” than the data posted by Dennis).

            That said, an uptick or slow down in the “return to normal” wouldn’t be unexpected given that the window of opportunity to “cash in” on many patents (particularly computer-implemented patents and other information-related patents) that were granted over the past fifteen years is going to continue to shrink in 2015.

    2. 2.2

      That could not have any correlation to this drop from only August to December in only one year. Especially since the number of new patent issuances went way up in that same time period.

      1. 2.2.1

        Normalization is not necessarily linked to causation Paul.

        Here, the normalization is more linked to the set of available suits.

        But Jane’s post did make me think that the number of possible suits might need to be modified upward given that a suit can be brought on any particular subset of claims (for example, only bringing a suit on method claims… 😉 )

    3. 2.3

      Interesting thought. My initial reaction is that the comparison would probably be of limited value for this particular dataset. Setting aside the difficulty of calculating the number of patents in force at every time point, the above graph is for pending cases, which (even assuming causality) are necessarily going to have some sort of lagged relationship with the number of patents in force. A more direct comparison would be with the new actions filed data, although I would expect a lagged effect there as well. Given these lagged effects of unknown amount, it would require a lot of work to develop a meaningful normalization.

      One other thing to think about: the data presented above is for a relatively short time period. To do a meaningful analysis, I would probably want to extend the time scale out quite a bit.

      1. 2.3.1

        Yes, the lagging effect is particularly enhanced by the fact that if you look at the age of patents being sued on it is heavily skewed toward older patents.

  9. 1

    There may be additional support for your observation that “I just don’t see these [IPR] stays making a significant impact.” By now, there should be closer to a balance in the number of new IPRs [and CBMs] with new stay requests based thereon vis a vis the number of IPRs with final decisions. While the % of IPRs in which claims are cancelled is fairly high, many are patent cases in which previously the defendants would otherwise have settled by then [paid the patent owner] to avoid litigation costs. So that change may be something of a “wash” in terms of these statistics on pending cases?
    The really interesting question on suit numbers to me is how many new patent suits will be deterred from even being filed (or promptly disposed of on 12(b)6 motions,) for Alice-101 reasons? Or, deterred by concerns as to possibly getting socked for defendant’s attorney fees?

Comments are closed.