OVERVIEW
As district court patent litigation has slowly declined in 2017, total disputes at the Patent Trial and Appeal Board ("PTAB") in 2017 increased 10 percent compared to Q1-Q3 2016. While the total volume of new cases has decreased, the proportion of patent disputes involving non-practicing entities (“NPEs”) remains steady at close to 90 percent of all patent cases in the High-Tech industry. Total projected new cases for 2017 are expected to be 3,805 in District Court and 1,867 at the PTAB assuming current trends. This would be a 13% decrease in total new district court cases compared to 2016.
Figure 1: Total patent disputes for 2017 is expected to exceed 5,600 new disputes, just below numbers for 2016.
Figure 2: New PTAB filings decreased in Q3, yet 2017 is still set to be the Board's busiest year to date.
Figure 3: PTAB is the largest forum for patent disputes. Eastern District of Texas (ED Tex) continues to be most popular venue for patent litigation, though this is unlikely to be the case for 2018 because of TC Heartland (see below).
Figure 4: High Tech continues to see the most patent disputes at the district court and PTAB.
TC Heartland Update
Figure 5: Post-TC Heartland, Delaware is becoming the most popular venue for patent litigation. Eastern District of Texas (ED Tex) experienced a major decrease, while Delaware (DED) , Central (CD Cal) and Northern Districts of California (ND Cal), and Northern District of Illinois (ND Ill) have seen proportional increases.
Figures 6 & 7: ED Tex accounted for 34% of all new patent cases pre-TC Heartland compared to 16% post-TC Heartland.
For more information about the Supreme Court’s ruling in TC Heartland and to see our previous analysis of its likely impact on district court filings, look at Unified’s Quantitative Assessment.
DISTRICT COURT
Figure 8: Consistent with data from previous quarters, approximately 60% of all new patent disputes filed in Q3 2017 were attributed to NPEs.
Figure 9: Most District Court cases involve High Tech patents.
Figure 10: Nearly 90% of NPE litigation involves High Tech patents, whereas only 17% of Non-NPE litigation involves the high tech industry.
Figure 11: Patent Assertion Entities are by far the most prevalent NPE filers, however the proportion of suits filed by individual NPEs in 2017 (27.8%) is a significant increase compared to the proportion of individual NPEs in 2016 (6.0%).
PTAB
Figure 12: PTAB has received more new petitions in the first three quarters of 2017 than in any previous year for the same time period. The PTAB in 2017 instituted 72% of petitions filed against NPE-owned patents, just above the 68% institution rate for non-NPE patents. For more historical data on PTAB filings and institution rates, visit our Portal.
Figure 13: Two-thirds of PTAB petitions involved High-Tech patents, while only 18.3% involved Medical and 15.6% involved Other patents.
Figure 14: Half of all High Tech PTAB petitions in 2017 were filed against patents held by Patent Assertion Entities. For further analysis of these High Tech petitions, visit our Portal.
Figure 15: Unified Patents was the 5th most-frequent petitioner at the PTAB between Q1-Q3 2017. For a complete list of Unified's filings, visit our Portal.
Figure 16: Six out of the top 8 most-challenged Patent Owners at PTAB in 2017 are NPEs. Uniloc, a notorious NPE that filed 67 new district court cases in 2017 (about 7-8 complaints/month), was the most-frequently challenged Patent Owner at PTAB between Q1-Q3 2017. For the latest data on PTAB parties and more, visit the Analytics section on our Portal.
DEFINITIONS
Sectors
High-Tech = Technologies relating to Software, Hardware, and Networking
Medical = Technologies relating to Pharmaceuticals, Medical Devices, Health Related Technologies
Other = Technologies relating to Mechanical, Packaged Goods, Sporting Equipment and any other area outside of high-tech and medical patents.
Entities
Non Practicing Entity (NPE) = Company which derives the majority of its total revenue from Patent Licensing activities.
Operating Company or Op. Co. = Company which derives most of its total revenue from Product Sales or Services. Could be an SME or a large company.
Other Entity = Universities / Non-Profits / Government / Non-Governmental Organizations (NGOs)
NPE (Patent Assertion Entities) = Entity whose primary activity is licensing patents and acquired most of its patents from another entity
NPE (small company) = Entity whose original activity was providing products and services, but now is primarily focused on monetizing its own patent portfolio.
NPE (individual) = Entity owned or controlled by an individual inventor who is primarily focused on monetizing inventions patents by that individual inventor.
Venue in Federal District Court
TXED = Eastern District of Texas
DED = Delaware
CACD = Central District of California
CAND = Northern District of California
ILND = Northern District of Illinois
METHODOLOGY
Total number of reported cases can vary based on what is included. Unified made its best attempt to eliminate mistaken, duplicative, or changes in venue filings, hence the totals may vary slightly compared to other reporting entities.
This data includes all District Court and PTAB litigations between January 1, 2014 and September 30, 2017.
Statistics include litigation initiated by NPEs or Declaratory Judgments (DJs) initiated by operating companies against NPEs.
Unified strives to accurately identify NPEs through all available means, such as court filings, public documents, and product documentation.