Overview

2023 was an eventful year for the patent world. The USPTO sought comments on the ANPRM and Patent Eligibility Restoration Act. The Unified Patent Court (UPC) launched. Pressure mounted in the EU to create a SEP commission. Despite the implemented changes or those proposed, litigation levels remained constant. IP Edge continues to be notably absent, but others, like Jeffrey M. Gross and Intellectual Ventures, have increased their assertions.

Highlights:

Litigation was down 12.5%, PTAB was down 11.4%, and Reexams were up 6.7%
With disclosure requirements and referral for disbarment in Delaware, the EDTX became the hotspot for NPE activity, although the WDTX was only 54 cases behind.
Litigation remained on par quarter-by-quarter with a standard deviation of 28.2 cases, even without IP Edge.
Jeffery M. Gross and Intellectual Ventures led 2023 for most suits filed by Litigation Investment Entities (LIEs) with 226 collectively. Patent Armory, attributed to Gross as well, made up 83 of those suits.
With a lukewarm start, the UPC has begun to see an uptick in cases, particularly surrounding SEPs with a total of 155 cases.
Unified Patents leads ex parte reexaminations with 57 in 2023 and 96 since 2020 collectively.

Figure 1: With significant active or pending policy and procedural changes occurring, it is no surprise that litigation was down 12.5%, the PTAB was down 11.4%, and Reexams were up 6.7% in 2023.

Figure 2: While litigation was down 12.5% largely due to IP Edge’s absence, litigation remained on par quarter-by-quarter with a standard deviation of 28.2 cases. This would indicate that litigation, without IP Edge, was still on par with the previous year and the change was insignificant.

Figure 3: NPE (PAE) averaged 246 cases per quarter and OpCo’s averaged 338 cases per quarter remaining consistent.

Figure 4: With disclosure requirements taking full affect and a referral for disbarment in Delaware regarding IP Edge’s conduct, the EDTX became the hotspot for NPE activity, although the WDTX was only 54 cases behind.

Figure 5: PTAB filings were down by 11.4% due to the uncertainty of ANPRM. The standard deviation for 2023 was 31.2 suggesting a low variance as compared to other years.

Figure 6: High-Tech litigation continues to dominate district court and PTAB litigation in 2023.

Litigation Investment Entity Tracker (LIEs)

Figure 7: With the notable absence of IP Edge, LIEs filing has dropped nearly 100 cases, which reflects the 400+ filings a year attributed to IP Edge Entities.

Figure 8: Jeffery M. Gross and Intellectual Ventures led 2023 for most suites filed by LIEs.

Figure 9: In 2023, Jeffrey Gross and Intellectual Ventures both filed more assertions than in 2022. Their LIEs assertions remained relatively the same.

Figure 10: 3,925 assets changed hands in Q3 2023, and 61% of transacted assets were bought by NPEs, per Allied Security Trust. Dominion Harbor purchased 1,430 assets from Intellectual Ventures related to software. It is worth mentioning that the deal record date occurred 20 days after Dominion Harbor filed their first litigation against Hanwha. NPE Steger IP LLC bought 263 Semiconductor assets from Micron Technology Inc.

District Court

Figure 11: NPEs still accounted for 58% of all patent litigation similar to its 5-year average.

Figure 12: Jeffrey Gross was the top filer in 2023, with his entity Patent Armory making the most assertions.

Figure 13: The majority of top defendants remain High-Tech companies.

Figure 14: Nearly 57.5% of litigation involves the hi-tech industry, while medical-related suits remain at about 15%.

Figure 15: NPEs targeted high-tech companies 95% of the time in 2023, while non-NPEs targeted high-tech companies only 14% of the time.

Figure 16: NPEs are still responsible for 87.4% of litigation in the High-Tech industry.

PTAB Disputes

Figure 17: ANPRM comments and feedback created uncertainty around PTAB proceedings, resulting in a decline in the number of filings until Q4.

Figure 18: About 68% of all PTAB petitions filed in 2023 involved High-Tech companies.

Figure 19: Approximately 54% of all AIA challenges filed in 2023 involved High-Tech companies petitioning NPE-controlled patents.

Figure 20: IPRs remained the most popular AIA proceeding, claiming 74.2% (1,156) of all 2023 post-grant proceedings. Reexaminations were the second most popular, accounting for nearly 23.6% (368) of all patent challenges at the USPTO. Explore this data further on Unified’s Portal.

Figure 21: High-Tech companies such as Samsung, Google, Meta, Cisco, and Apple rounded out the list of top Petitioners this quarter.

Figure 22: While High-Tech patents are the primary focus of the PTAB, medical/pharma patents are being increasingly challenged.

Reexaminations

Figure 23: 368 Reexaminations were filed in 2023.

Figure 24: In 2023, NPEs account for 50% of patent owners challenged in reexamination.

Figure 25: Since 2015, NPEs such as WSOU, Omega Patents, and Personalized Media Communications have been filed against the most.

Figure 26: Unified has been the top public requester in 2023. Unified attempted to identify the requester, and when no identified party was named, the law firm became the requester.

Unified Patent Court

Figure 27: With a lukewarm start, the UPC has begun to see an uptick in cases, particularly surrounding SEPs.

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.

NPE Aggregator = Entity that has control or ownership over two or more entities.

Litigation Investment Entities = Evidence of any third party with a financial interest, other than the assertors.

Venues

CACD = Central District of California

CAND = Northern District of California

DED = Delaware

NJD = New Jersey

NDIL = Northern District of Illinois

SDNY = Southern District of New York

TXED = Eastern District of Texas

TXWD = Western District of Texas

UPC = Unified Patent Court

Methodology

This report includes all District Court and PTAB litigations between January 1, 2015 and December 31, 2023.

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. Statistics include litigations 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.