2022 Patent Dispute Report


Overview


Overall patent litigation was down a bit and the PTAB was up a bit as budgets tightened down with the lackluster economic performance. NPEs both Patent Assertion Entities and Aggregators continued to increase their activities. NPEs continued to be the largest number of filers.

Highlights:

  • In general, District court filings were down 10.6% year-to-year. Operating Company based assertions are down 8.5% year-to-year from 1,375 to 1,259. NPE (Small Company) and NPE (Individuals) were down 16.3%, however NPE (Patent Assertion Entities) remained steady with 1,756 filings versus 1,754 in 2021. 

  • PTAB filings are up overall with an 11.4% increase in NPE related filings. 

  • Even with the standing orders issued, NPEs filed 31% of their cases in TXWD - more than all patent-related cases in Delaware or any other venue.

  • NPE Aggregators such as IP Edge or Softbank/Fortress brought nearly 40% of all cases. 

  • 45% of all NPE Aggregator Cases were brought by IP Edge entities. 

  • About 30% of lawsuits appear to be backed by third-party financing. 

  • Reexaminations filings increased 15% from 2021.


Figure 1: Overall the district court was down 10.6% year-to-year, but remained flat when compared to its 5-year average. PTAB filings went up, with an 11.4% increase in NPE related filings . Reexaminations continued to gain steam filings were up 15% versus last year. 

Figure 2: Nearly 60% of all patent litigation in 2022 stem from NPEs, matching its 7-year average.

Figure 3: At the PTAB, 40% of challenges were NPE related in 2022.

Figure 4: PAEs are responsible for 50% of all suits brought in 2022.

Figure 5: The Western District of Texas continued to be the most popular venue in 2022. 

Figure 6: Judge Albright’s caseload has dropped in 2022 on a month-to-month basis, but 61% of all WDTX patent cases still remain on his docket. 

Figure 7: Even with the standing orders issued, NPEs continue to gamble in the Western District of Texas with 389 NPE filings in the first half and 302 NPE filings in the second half of 2022. 

Figure 8: High-Tech litigation continued to dominate both district courts and the PTAB in 2022. 

District Court


Figure 10: Cedar Lane continued to be the most litigious stand-alone entity, but Bell Semiconductor was not far behind filing over 100 cases in 2022. 

Figure 11: Alphabet and Samsung continued to be the most named defendants. Walmart made into the top-10 as they were sued on various back-end technologies.  

Figure 12: Nearly 40% of all cases were brought by NPE Aggregators such as IP Edge or Softbank/Fortress. A more detailed report is forthcoming of both aggregations and third party litigation funding. 

Figure 13: IP Edge entities account for 45% of all NPE Aggregator Cases. Hilco entered the top-five with a series of suits related to semiconductors with entity Bell Semiconductor. It should also be noted that Acacia coming in at 13th most litigious NPE Aggregator through its acquisitions of the former Yahoo/Verizon portfolio has been actively asserted R2 Solutions patents. In late December Acacia asserted against Hilton, 7-Eleven, GameStop, and Southwest after also asserting against America Airlines, Hilton, CVS, and Citigroup in March. 

Figure 14: Nearly 30% of patent cases were backed by third-party financing in 2022. Most funding is directed to NPEs

Figure 16: NPEs targeted high-tech companies 95% of the time in 2022, while non-NPEs targeted high-tech companies only 27% of the time.

Figure 17: NPEs bring over 88% of high-tech litigation in 2022.

PTAB Disputes


Figure 18: NPE related filings increased by 11.4% from 561 to 633 in 2022. 

Figure 19: Consistent with district court proceedings, approximately 67.7% of all PTAB petitions filed in 2022 involved High-Tech companies

Figure 20: Approximately 54% of all AIA challenges filed in 2022 involved High-Tech companies petitioning NPE-controlled patents. Explore this data further on Unified’s Portal.

Figure 21: IPRs remained the most popular post-grant proceeding, claiming 76.4% of all post-grant proceedings in 2022. Reexaminations were the second most popular, accounting for nearly 21.5% of all patent challenges at the USPTO. Explore this data further on Unified’s Portal.

Figure 22: Apple led the PTAB in filings, followed by Samsung, Google and Unified Patents. 

Figure 23: It is no surprise that 9 out of the top 10 patent owners at the PTAB were NPEs. As noted before, 34 IPR petitions were filed against Ericsson's by Apple in its ongoing FRAND battle that was recently settled.

Reexaminations


Figure 24: Reexaminations are up 15% versus last year with 367 filings.


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. 


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 December 31, 2022 .

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 © 2023 - Unified Patents, LLC. All rights reserved.

GE patent dropped from Access Advance HEVC pool after successful Unified challenge

Some patent holders and pools designate their patents as relevant or essential to a standard without proper scrutiny or analysis. As part of an ongoing series examining this dubious practice, we highlight U.S. Patent 10,057,603. The ’603 patent is owned by GE Video Compression. Access Advance LLC had identified this patent as purportedly essential to the H.265 (HEVC) standard as part of the Access Advance Patent Pool. But after an ex parte reexamination initiated by Unified Patents led to a significant narrowing of the claim, Access Advance no longer lists this patent as essential. 

Access Advance had identified claim 1 of the ’603 Patent as allegedly essential. That claim recites:

1. A decoder for decoding a data stream including encoded data of a video, the decoder comprising:

an entropy decoding engine configured to decode data from the data stream based on an arithmetic decoding scheme to obtain a sequence of symbols, 

wherein, with respect to at least one symbol of the sequence of symbols, the entropy decoding engine is configured to:

select a context corresponding to the at least one symbol, and 

entropy decode the at least one symbol using the selected context based on the arithmetic decoding scheme, which includes updating a probability model associated with the selected context at one of a first update rate under a high-efficiency mode of entropy decoding and a second update rate, that is lower than the first update rate, under a low-complexity mode of entropy decoding; and

a reconstructor configured to reconstruct at least a portion of the video based on the sequence of symbols.

Unified filed its reexamination request on December 21, 2020, based on prior art that clearly disclosed claim 1. Given the strength of the prior art, the USPTO quickly determined that a substantial new question of patentability had been raised. A formal rejection issued on June 25, 2021, detailing how the prior art rendered the claim invalid. Of importance here, the claims were found to only cover the specific, corresponding disclosures in the specification rather than the broad, functional language that was clearly taught by the prior art. In the following months, the patent owner attempted to dissuade the examiners of this interpretation, but those attempts failed, and the reexamination concluded on January 26, 2022. 

Under U.S. law, a patentee is only allowed to use the broad, functional language at issue here if it is willing to be limited to the specific disclosures in the patent that correspond to the functional language. Patent asserters like Access Advance have tried to shirk this requirement when asserting their patents, taking advantage of claim language that looks broad on its face. Worse, Access Advance kept this patent in its May 2022 list of allegedly-essential patents only to finally remove it from its October 2022 list, nearly 10 months after the reexamination concluded.

Hence, the importance of formal scrutiny is demonstrable. Overbroad assertions of hundreds of patents that allegedly cover critical technical standards can, and should, be meaningfully analyzed. In the end, the public benefits when it is clear which are the truly valid and essential patents. Challenges to such assertions have a proven track record of sifting the wheat from the chaff.

Hilco Global entity Bell Semiconductor integrated circuit patent challenged

On December 30, 2022, Unified Patents filed an ex parte reexamination proceeding against U.S. Patent 7,007,259, owned and asserted by Bell Semiconductor LLC, an NPE and entity of Hilco Global. The ‘259 patent generally relates to methods for patterning dummy metal to achieve planarity for chemical-mechanical polishing (CMP) of integrated circuits. The patent has been asserted in over 25 litigations against semiconductor companies like NXP, AMD, Micron, Qualcomm, Infineon, Western Digital, Lattice Semiconductor, and others.

View district court litigations by Bell Semiconductor. Unified was represented by Raghav Bajaj, David McCombs, Jon Bowser, and Hong Shi of Hayes Boone, and by in-house counsel Roshan Mansinghani and Michelle Aspen.

To view any documents for the reexamination proceedings on Unified's Portal, go to https://portal.unifiedpatents.com/exparte/90015183.

Patcepta Kick-Off Call - January 26

Patcepta is a new open source rules engine for improving patent prosecution and management through automation. As the first of its kind, Patcepta’s goal is to provide an open, understandable, and auditable ruleset and toolkit for enabling more efficient and innovative processes and tools for managing IP portfolios.

Patcepta is hosted by Unified Patents and The Linux Foundation. Any interested party can join to help foster a new generation of IP management practices using open source software. The rules and code are open source which allows for worldwide collaboration and builds trust and confidence in those who use it.

Patcepta will hold a Kick-Off Call on January 26, 2023 at 1:30PM PST.

Invitation Details and Link Below:

Patcepta Kick Off Meeting Thursday, January 26 · 1:30 – 2:30pm

Dolby & Access Advance codec patent challenged in EPO

On December 30, 2022, Unified filed an opposition proceeding against EP 3767950, owned by Dolby International AB. EP ‘950 is generally directed to tracking reference pictures for use in digital image decoding using a cycle parameter and is related to patents that have been identified as essential to the Access Advance Patent Pool. This filing is a part of Unified’s ongoing efforts in its SEP Video Codec Zone.

Unified is represented by Dr. Susan E. Keston and Harry Hutchinson of HGF Law, and by in-house counsel, Jessica L.A. Marks and Ellyar Barazesh.