From the U.S. Patent and Trademark Office’s (USPTOUnited States Patent and Trademark Office. See also PTO.) Advanced Notice of Proposed Rulemaking (ANPRM) to new revelations about litigation investment entities, and the launch of the Unified Patent Court (UPC) – 2023 was an eventful year for patent policy, both in the United States and abroad.
Unified Patent’s 2023 Dispute Report highlights the past year’s key trends in patent disputes. The analysis found that there was a slight decrease in district court cases, largely due to the non-practicing entity (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) IP Edge’s absence, and a decline 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.), presumably due to the ANPRM and the uncertainty around which changes would go into effect and when.
District court litigation was down 12.5% in 2023, but 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 still accounted for 58% of all lawsuits, on par with the 5-year average. Due to District of Delaware Chief Judge Colm Connolly’s investigation into IP Edge and his decision to refer the firm and its lawyers to the U.S. Department of Justice, the Patent and Trademark Office, and state bar regulators, the notorious 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 was absent this year. But, in its stead, litigation investment entities like Jeffrey M. Gross and Intellectual VenturesThe largest patent aggregator, currently holding around 40,000 patents. Closely associated with co-founder Nathan Myhrvold. IV is often viewed as a patent assertion entity, although much of its activities are conducted through spinoffs, and the company is at least nominally in the business of producing inventions in-house. See our posts on Intellectual Ventures. increased their activity – accounting for a combined 226 suits in 2023.
While Judge Connolly’s transparency measures didn’t have much of an impact on the proportion of cases filed by 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 nationally, it did influence where 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 cases were filed. The Eastern District of Texas took the lead this year with 522 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 cases filed, while the Western District of Texas was not far behind with a total of 467 cases. The Delaware District Court came in a distant third place, down to 157 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 filing cases.
At 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., filings decreased this year, down 11.4% compared to 2022. This decline was likely due to uncertainty around the USPTO’s ANPRM, which, as noted previously on Patent Progress, faced overwhelming public opposition.
Unsurprisingly, high-tech companies continue to comprise the majority of defendants in district court and at 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., at 58% and 68% respectively. In district court, 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 non-NPEs targeted high-tech companies only 14% of the time. 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 district court naturally carried over to 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., where more than half of all America Invents Act (AIAAmerica Invents Act of 2011. AIA made modest reforms, most notably moving the U.S. to a first-inventor-to-file system more aligned with foreign practice, but also including expanding prior user rights to all patent-eligible subject matter, and instituting a post-grant review proceeding.) challenges – 54% – involved high-tech companies petitioning NPE-controlled patents.
Reexaminations at the USPTOUnited States Patent and Trademark Office. See also PTO. were up 6.7% year-over-year. Again, NPE-controlled patents featured prominently in these proceedings as they controlled 50% of all patents challenged. The reexaminationThe process by which the USPTO conducts an examination of a patent after it has issued, undertaken upon written request by a member of the public who establishes that there is a reasonable likelihood that the requester would prevail with respect to at least 1 of the claims challenged in the request. The pre-AIA standard was that there be "substantial new uptick and 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. decline are intuitive in the context of 2023’s uncertain rulemaking environment at the USPTOUnited States Patent and Trademark Office. See also PTO., where significant changes to inter partes reviewAn adversarial procedure created by the AIA for challenging patents. Intended to be similar to a court proceeding, the parties argue before an Administrative Patent Judge, not a patent examiner. The challenger must show a reasonable likelihood of successfully invalidating one claim before the PTAB will agree to grant a petition for review. (IPRIntellectual Property Rights. Usually associated with formal legal rights such as patent, trademark, and copyright. Intellectual property is a broader term that encompasses knowledge, information, and data considered proprietary whether or not it is formally protected.) were under consideration.
2023 was also an eventful year for patent policy in the European Union. After a slow start over the summer, the UPC saw a steady increase in cases, especially those surrounding standard essential patents (SEPs), where by the end of the year there were a total of 155.
Unified Patents regularly produces analysis on district court patent litigation, proceedings at the USPTOUnited States Patent and Trademark Office. See also PTO., and developments at the UPC, but to further explore the data and for more in-depth information, please visit Unified’s Portal.