2021 Patent Dispute Report: First Half in Review

Overview

The biggest development of 2021 so far was the Supreme Court’s split decision in Arthrex, where a plurality of the Court found the Patent Trial and Appeal Board’s (PTAB) Administrative Patent Judges (APJs) were unconstitutionally appointed principal officers. Rather than create pure chaos, the Supreme Court identified a simple way to resolve the issue-- the United States Patent and Trademark Office (USPTO) Director merely needed to retain the power to review APJ’s final decisions. Even with the uncertainty looming while Arthrex was pending, it appears that it has been business as normal with a 4.3% increase in litigation and PTAB filings from the first quarter.

Highlights:

  • Despite Fintiv and Arthrex, overall patent disputes are up 4.3% from the first quarter of 2021. 

  • The Western District of Texas continues to account for 25% of all patent litigation, with 64% of cases being a NPE aggregator and nearly 50% backed by third-party financing. 

  • Cedar Lane continues to be the most litigious plaintiff with 54 cases, with 36 (67%) filed in the Western District of Texas. 

  • Samsung, remains the most active PTAB filer with 61 thus far  and continues to be named as the first-name defendant the most with 35.  

  • Reexaminations are expected to increase 8.8%, due to the short timeline of decisions and the uncertainty surrounding the Fintiv framework. 

  • Unified is the 6th most active PTAB filer, but continues to focus internationally with 12 Chinese oppositions, 7 EPO oppositions, 5 Japanese oppositions, and 1 UK opposition. In addition, Unified has filed 22 requests for reexamination. 


Figure 1: With the first half of 2021 complete, it appears that litigations in 2021 will be slightly higher than in 2020. In contrast, the PTAB is seeing a slight dip in petitions, with the uncertainty surrounding § 314 and the Fintiv framework.

Figure 2: Despite the slight dip from the first half of 2021, both litigation and PTAB filings have increased on a quarter-by-quarter basis since Q4 of 2020.

Figure 3: Although the PTAB continues to have the most patent cases, the TXWD leads other district courts in accounting for nearly 25% of all patent cases. NPE-related litigation accounts for 82% of the patent cases in this district and almost surpasses the total number of patent cases filed in the District Court of Delaware. View all District Court and PTAB litigation on Unified’s Portal.

Figure 4: Super NPEs account for nearly 64% of all NPE cases in the Western District of Texas, as identified in Unified’s aggregation report, Top-5 Patent Litigation Venues Seen Nearly Half of the Cases Related to a Super NPE.

Figure 5: The year-by-year trend of aggregators in the Western District of Texas can be seen below.

Figure 6: The aggregators continue to find financing, with investors looking for non-traditional ways to find returns, resulting in nearly 50% of all NPE cases being backed

Figure 7: The year-by-year growth in the Western District of Texas can be seen below. To see other districts including, the Eastern District of Texas, the Northern District of California, the Central District of California, and the District of Delaware as identified in Unified’s aggregation report, Top-5 Patent Litigation Venues Seen Nearly Half of the Cases Related to a Super NPE.

Figure 8: High-Tech litigation continues to dominate both district courts and the PTAB, comprising 70% (1,363 out of 1,942 cases) and 66% (446 out of 674 filings), respectively.


District Court

Figure 9: NPE-related litigations are projected to out-pace last year’s numbers by 6.6%, while operating companies have shifted focus on post-pandemic recovery

Figure 10: Looking quarter-by-quarter NPE-related litigation continues to remain at its 5-year average of 59%. Litigation in the second quarter increased 6.8% overall versus the first quarter of 2021.

Figure 11: Cedar Lane Technologies is the highest asserting entity in 2021. Following previous trends, 9 of the top-10 named asserting entities in 2021, were NPEs. View District Court litigation on Unified’s Portal.

Figure 12: Samsung entities were the most targeted first-name defendants in 2021. Litigation seems to be centered on network, computer, wireless, and cellular manufacturers. View District Court litigation on Unified’s Portal.

Figure 13: In the first half of 2021, 70% of all new US district court patent cases involve High-Tech companies. This is up 5% from last year.

Figure 14: NPE activity in the High-Tech sector alone continues to contribute more 2021 patent infringement cases than all non-NPE patent litigation combined. NPEs target the High-Tech sector 95% of the time. View High-Tech litigation on Unified’s Portal.

Figure 15: NPEs accounted for 85.8% of assertions in High-Tech Litigation in 2021. View all 2021 District Court litigation on Unified’s Portal.


PTAB Disputes

Figure 16: Based on the second quarter of 2021, PTAB filings are projected to decrease by 11.3% this year. This is most likely due to the combination of companies turning to re-examinations and the uncertainty of discretionary denials. The Board’s institution rate in inter partes reviews has increased and is now at 58.8%. More details for these PTAB proceedings are available on Unified’s Portal.


Figure 17: This quarter, the PTAB received a total of 345 requests for inter partes reviews, up 5.5% from the first quarter of 2021. NPE related-filings accounted for 43% of all filings, which increased 2% from the 5-year average of 41%.

Figure 18: Consistent with district court proceedings, approximately 66.2% of petitions filed in 2021 involved High-Tech companies.

Figure 19: Approximately 54% of all AIA challenges filed in 2021 that involved High-Tech companies related to NPE-controlled patents. Explore this data further on Unified’s Portal.

Figure 20: IPRs remained the most popular post-grant proceeding at the PTAB. However, reexaminations account for 14.6% of all patent challenges at the PTAB. Explore this data further on Unified’s Portal.

Figure 21: The use of § 314(a) is projected to be similar to last year's use. It will be interesting to watch what the Supreme Court decision does in terms of APJs elected use of discretionary denials.

Procedural Denials (2).png

Figure 22: The NHK Spring/Fintiv framework continues to be the primary source of denials under §314(a). It is projected to grow by nearly 40% this year alone. More details will follow in the Unified quarterly report on discretionary denials.

314(a) Denials By Type (3).png

Figure 23: The first half saw Samsung as the most frequent petitioner with 61. Unified, is the 6th overall filer with 231. This year alone Unified has filed 22 reexaminations and 12 Chinese oppositions, in addition to the 7 EPO oppositions, 1 UK opposition and 5 Japanese Oppositions from last year. View all of Unified’s cases on Unified’s Portal.

Figure 24: Interestingly there is now a focus on challenging operating companies, rather than NPEs at the PTAB, as only 4 of the top 10 Patent Owners are NPEs. View all PTAB cases on the Portal.


Reexaminations

Figure 25: Coming soon to Portal, will be the world’s first comprehensive database on reexaminations. It appears that due to the average decision time being around 5.2 months for both 2020 and 2021 combined, more entities are turning to this mechanism. 2021 is projected to see an increase of 8.8% from 2020.


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.

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

Methodology

This report includes all District Court and PTAB litigations between January 1, 2015 and June 30, 2021.

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.


Copyright © 2021, Unified Patents, LLC. All rights reserved.

Dolby Labs patent determined to be likely invalid

On June 17, 2021, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims of U.S. Patent 10,237,577. The IPR was filed as a part of Unified’s ongoing efforts in its SEP Video Codec Zone. Formerly owned by Intellectual Discovery Co. Ltd., the ‘577 patent is currently owned by Dolby Laboratories. The patent is a part of the HEVC Advance patent pool and HEVC Advance claims that certain claims of the '577 patent are essential to the HEVC standard.

Unified is represented by Raghav Bajaj from Haynes and Boone and by in-house counsel, Roshan Mansinghani and Ashraf Fawzy, in this proceeding. Visit Unified’s Portal for more information about its Video Codec landscape (OPAL) and standard submission repository (OPEN). To read the petition and review the case record, view IPR2021-00275 on Unified’s Portal.

Jenam Tech settles with Unified

On June 29, 2021, the Board issued an order terminating IPR2020-00742 pursuant to a joint settlement request filed by Unified Patents and Jenam Tech, LLC, an NPE and Oso IP affiliate. U.S. Patent 9,923,995 is generally directed to sharing information for detecting an idle network connection between two nodes, and has been asserted in district court cases against LG, Samsung, and Google.

View Jenam Tech’s district court litigation. To read the petition and view the case record, see Unified's Portal. Unified is represented by in-house counsel, Jung Hahm and Roshan Mansinghani, in this proceeding.

PacSec3 '497 reexamination request granted

On June 17, 2021, 6 weeks after Unified filed an ex parte reexamination, the USPTO granted Unified’s request, finding substantial new questions of patentability on all challenged claims of U.S. Patent 7,523,497, owned by PacSec3, an NPE. PacSec3 was formed in 2020 with NACAR IP LLC as its managing member. NACAR IP was also formed in early 2020 with Dynamic IP Deals, LLC (d/b/a DynaIP), a patent monetization company, identified as its managing member. The ‘497 patent has been asserted against F5 Networks, NetScout Systems, Palo Alto Networks, McAfee, Cisco, and Juniper Networks.

View district court litigations by PacSec3. Unified is represented by Jonathan Bowser of Haynes and Boone, LLP, and by in-house counsel, Roshan Mansinghani and Jordan Rossen.

To view any documents for the reexamination proceedings on PAIR, go to https://portal.uspto.gov/pair/PublicPair, enter 90/014,746, and click on the "Image File Wrapper" tab.

Top-5 Patent Litigation Venues Seen Nearly Half of the Cases Related to a Super NPE

As the post-pandemic world begins to shape up, the patent litigation world has seen billion dollar verdicts to record-breaking amounts of litigation financing. The explosive growth in litigation financing has come from a backlog of capital during the covid pandemic and investors seeking non-cyclical returns. As highlighted from last year’s report on NPE patent financing in the Western District of Texas, this trend can be seen among the top-5 patent venues. From Waco to Silicon Valley to Delaware, the effect of aggregations and financing can be seen. 

These venues were chosen, since the Western District of Texas now accounts for 25% of all patent litigation, while the remaining four account for 43% in the first quarter of 2021. Collectively, these five venues have seen the most litigation over the last five years, with nearly 70%. 

As identified last year the rise, anecdotally, seemed tied to frequent filers, co-owned entities, and entities underwritten by private litigation financing. Unified examined public databases, such as Edgar, to determine if there was an aggregator and known financing. NPE aggregators were defined as NPEs that have more than one affiliated subsidiary also bringing patent litigation. Third-party financing was defined as any third party with a financial interest, other than the assertors. 

When looking at the new rocket docket, the Western District of Texas, the momentum has not stopped. Nearly 64% of all cases can be attributed to patent aggregators---i.e., entities like WSOU or Uniloc. 

The year-by-year data would suggest that this momentum is only growing. The Western District of Texas–-fueled almost entirely by the Waco division–-has already seen 172 of it's cases linked to an aggregator, of the 333 cases brought in 2021 to date.

In addition, nearly 50% of all of the cases brought in the Western District of Texas can be tied to litigation financing.

Judge Albright has made the Western District of Texas not only a safe haven for small-time NPEs, but also one for those investors who are looking to use US patent litigation to reap non-cyclical, non-correlated returns.

And although the Eastern District of Texas has seen a dramatic decrease in cases, 90% of cases it has seen can be attributed to aggregators.

This trend of decreasing caseload increasingly dominated by patent aggregators can be seen below.

And with the aggregation effect comes financing, with nearly 63% of all cases being financed.

The yearly trend can be seen below.

New to this year's report, but has a long tradition in litigation, is Delaware. Interestingly, between 2015 and 2021, over 62% of all patent cases can be attributed to an aggregator.

The yearly breakdown of this trend can be seen below.

The financing identified attributes to nearly 30% of all aggregators.

While litigation may also be declining in Delaware, litigation-financed suits over the last couple of years have picked up steam.

California Northern has also seen a rise in aggregation, with nearly 57% of filed cases associated with aggregators.

Looking at the year-by-year trends, aggregation in this district appears to remain steady.

Around 16% of all aggregation has some form of financing.

Last year, despite the pandemic, financing found its way into the most cases ever recorded.

California Central has seen nearly 50% of all cases can be attributed to an aggregator.

The year-by-year breakdown can be seen below.

While not as prominent, financing can be attributed to over 13% of all cases.

There has been some movement in recent years regarding financing in California Central.

Obviously, financing and third-party economic backing is shrouded in secrecy, so this data necessarily underestimates the total percentage of cases funded by third parties, whether through private capital groups like Magnetar, Starboard, Vector Capital, or Burford Capital, or via private sources unwilling or unable to acknowledge their stake.  But what is clear from an honest assessment of filed cases is that in all of these top venues, more than 50% of patent litigation is related to patent aggregators. 


Copyright © 2021, Unified Patents, LLC. All rights reserved.