Opinions and Editorials

Nov. 5, 2021

CSIS Commentary: For ‘Patent Wars’ Alarmists, Time to Make Peace with the Empirical Data

To hear it from some critics, the U.S. patent system is buckling under the weight of frenzied and unprecedented patent litigation. The explosion in disputes—so the narrative goes—greatly increases transaction costs and significantly depresses innovation. A scary story indeed. But the empirical data paints a very different picture.

Critics who claim that “patent wars” have brought the system to the brink misplace focus on a single, flawed metric: the raw number of lawsuits. In the first place, patent litigation is not increasing. When examining patent litigation by any meaningful measure, there has actually been a slight decrease in recent years, with long-term trends revealing a markedly steady rate of patent litigation. Any perceived increases are illusory and attributable to the 2011 Leahy-Smith America Invents Act (AIA), which increased the raw number of lawsuits by making the joinder of defendants more difficult. The AIA precluded the joinder of multiple defendants in a single patent lawsuit solely on the basis that all defendants infringe the same patents. As a result, as of 2011 patent owners had to file separate cases against each defendant, creating an artificial inflation of patent lawsuits counted based on filings.

But even putting aside the fact that patent litigation is not truly increasing, there is a fundamental flaw in the very logic of “more is bad.” This reductive premise ignores that the core purpose of the patent system is to provide a mechanism for the exercise of proprietary rights. In an age where innovation is increasing and more patents are being granted, some increase in litigation is a sign not that the system is failing, but rather that it is working.