PublishedOctober 20, 2014

Yes, There Is (Still) A Patent Troll Problem

It’s been reported in a few places that a recent Lex Machina report states that patent litigation is down 40% from last year. Of course, the patent trolls are trying to use these inaccurate reports to argue that the patent troll problem is essentially solved.

Actually, the report says that the month of September in 2014 is down 40% compared to the month of September in 2013. The total number of patent litigations for the year is down compared to the same point last year, but it’s down 15%, not 40%, which is a big difference.

Here’s a chart showing patent litigations filed year to date as of each month, comparing 2013 and 2014 (with linear projections for 2014 for the last 3 months of the year):

Patent litigation YTD 2014 v 2013
Patent Litigations YTD by month, 2013 v. 2014

Looking at the trend since 2008, it looks like 2013 was a spike. The overall trend is still up:

Patent litigation cases filed trends
Patent litigations filed from 2008 – 2014

And as far as patent troll cases go, pretty much every single study except one (the widely cited GAO report which I largely debunked last year) shows that patent troll cases have grown to be 50–60% of all patent cases filed. (I note that the paper by Cotropia, Kesan, and Schwartz was cited with glee by anti-patent reformers when a preliminary draft showed a lower proportion of patent troll cases. After the final version was revised to show over 50% of patent cases are filed by patent trolls, the paper has mysteriously vanished from anti-reform arguments.)

The fact that patent trolls are pausing slightly to assess the changing landscape is hardly a reason to celebrate victory. So long as there’s money to be made in the business of patent litigation, patent trolls will continue suing.

Matt Levy

Previously, Matt was patent counsel at the Computer & Communications Industry Association

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