By: Sam Baird, Director of Analytics at Unified Patents
From the confirmation of Kathi Vidal as Director of the United States Patent and Trademark Office (USPTOUnited States Patent and Trademark Office. See also PTO.) to the Western District of Texas’s standing order attempting to break up Judge Alan Albright’s monopoly on patent lawsuits, and everything in between, 2022 was an immensely consequential year for our patent system.
The Unified Patents 2022 Dispute Report details the top patent litigation trends from a momentous year. A lackluster economic environment, and the corresponding tightening of budgets resulted in a slight decrease in district court patent litigation filings and an increase in filings at the Patent Trial and Appeal Board (PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA.). Despite the decline in litigation overall, NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More remained an active, ubiquitous presence in patent litigation.
Federal district court filings saw a decrease of 10.6% year-to-year, with operating company-based assertions declining by 8.5%. While overall NPENon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More assertions declined, patent assertion entities (PAEPatent Assertion Entity. A narrower term for trolls that focuses on the core business model rather than whether the entity is actually making use of the patented technology ("working the patent").) filings remained steady. In fact, the report found that nearly 60% of all patent litigation still stemmed from NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More, in line with its 7-year average. NPENon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More aggregators such as IP Edge and Softbank/Fortress brought nearly 40% of all cases, with IP Edge entities accounting for 45% of all NPENon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More aggregatorAn entity that acquires patents for strategic purposes as distinct from protecting a line of business. Aggregators often license patents nonexclusively to shareholders or other insiders, and then sell the patents to patent assertion entities (PAEs) to monetize. More cases.
In contrast to district court filings, PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. filings increased in 2022, with an 11.4% rise in NPE-related filings. This comes after Director Vidal issued interim guidance that rolled back the issuance of discretionary denials based on the NHK-Fintiv factors imposed by the previous director. While Director Vidal’s policy changes provided innovators restored protections they need to fight back against NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More, the growth of NPE-related fillings points to a concerning level of NPENon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More activity in our patent system writ-large.
Another concerning trend is the increasingly popular third-party litigation financing (TPLF) industry. Last year, about 30% of patent lawsuits were backed by some sort of third-party financing agreement, most of which were directed to NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More. This is yet another indication that we need greater transparency measures similar to the one taken in Delaware.
Despite the standing orders issued this year to break up Judge Alan Albright’s hold on patent lawsuits, NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More are continuing to take chances in the Western District of Texas (WDTX). Following the standing order to equitably distribute patent cases in the WDTX’s docket, Judge Albright’s caseload dropped on a month-to-month basis, but 61% of all WDTX patent cases still remain his. NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More still filed 31% of their cases in the WDTX, more than all patent-related cases in Delaware or any other venue.
As expected, patent litigation targeting the high-tech industry continued to dominate proceedings across district courts and the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA.. NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More targeted high-tech companies 95% of the time, while operating companies only brought lawsuits against high-tech companies 27% of the time. This is just one more indication that operating companies tend to focus on using their patents to protect and advance their products, but NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More are only looking for the most profitable targets.
While 2022 brought much needed change to the patent system, it is clear that NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More are still using frivolous litigation as a means to extract billions from American businesses and innovators. Without any larger institutional changes that will shed a light on the actions of NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More and third-party litigation funders, NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More, and in particular, large aggregators, will continue to target companies that have kept our country at the forefront of innovation.