There is tremendous interest in a certain type of patent
litigant — the often-called non-practicing entity ("NPE"), patent
assertion entity ("PAE"), patent monetization entity
("PME"), or simply patent troll. These NPEs are the subject of a
recent GAO report, a possible FTC investigation, pending legislation before
Congress, and even comments from the President of the United States. All of
this commentary and activity centers on whether NPE participation in patent
litigation, and the patent system in general, is detrimental or beneficial to
society. But the fundamental barrier to understanding the current debate is the
lack of granular and transparent data on NPE litigation behavior.
Accordingly, we personally hand-coded all patent holder litigants from calendar years 2010 and 2012, and we are releasing this data to the public. In our coding, we drill down and finely classify the nature of the litigants beyond the simple NPE or non-NPE definitions. Releasing this data to the public that unpacks the definition of NPE can provide better illumination to policy makers, researchers, and others interested in the patent litigation system.
The data reveals a much lower percentage of litigation brought by patent holding companies than other studies, finding no explosion in NPE litigation between 2010 and 2012. Instead, we find that most differences between the years — an increase in the number of patent holding companies and individual inventor suits — is likely explained by a change in the joinder rules adopted in 2011 as part of the America Invents Act.
Accordingly, we personally hand-coded all patent holder litigants from calendar years 2010 and 2012, and we are releasing this data to the public. In our coding, we drill down and finely classify the nature of the litigants beyond the simple NPE or non-NPE definitions. Releasing this data to the public that unpacks the definition of NPE can provide better illumination to policy makers, researchers, and others interested in the patent litigation system.
The data reveals a much lower percentage of litigation brought by patent holding companies than other studies, finding no explosion in NPE litigation between 2010 and 2012. Instead, we find that most differences between the years — an increase in the number of patent holding companies and individual inventor suits — is likely explained by a change in the joinder rules adopted in 2011 as part of the America Invents Act.
On Thursday, February 6, 2014, from 12:00 pm – 1:00 pm (US
Eastern Time), The Patent Litigation Committee of the Federal Circuit Bar
Association is sponsoring a panel, Are
Patent Assertion Entities Responsible for the Rise in Patent Suits,
featuring the authors of the study as well as David Kappos, Partner at Cravath,
Swaine & Moore, and former Director of the United States Patent and
Trademark Office. The moderator is Eric Cohen, Partner at Katten Muchin Rosenman. The description of the panel
states:
Proponents of proposed patent reform legislation have assumed
that there has been a dramatic recent increase in patent infringement actions
filed by patent assertion entities (“PAEs”), also pejoratively referred to as
‘patent trolls.’ A study by professors Cotropia, Kesan, and Schwartz of patent
infringement data refutes this assumption. In this program, the authors of the
study and David Kappos, former director of the United States Patent &
Trademark Office, explore whether there has, in fact, been an upsurge in patent
infringement cases filed by PAEs, and whether the data from the study suggests
a more cautious approach to legislation that would affect the manner in which
courts manage patent litigation. (emphasis added).
Additional information about the
panel, including registration details, can be found here.