Patent News

Jun. 4, 2015

Morning Consult: Another Study Undercuts Claim of Soaring Patent Litigation, by Brian Pomper

This post originally appeared in Morning Consult on June 4, 2015.

Proponents of further sweeping patent law changes frequently claim as justification that patent litigation rates have soared in recent years, and that this litigation is being driven by so-called “patent trolls.”

What you wouldn’t know from listening to their argument is that patent litigation rates have remained relatively constant – at about 1 percent of patents filed – for more than 100 years. The increase in the number of patent suits in recent years has occurred at a rate roughly in line with the growing number of patents issued. With an increase in patents issued, it is to be expected that there would be more infringement, and accordingly more efforts by patent holders to defend their intellectual property rights.

But there is another important factor driving the apparent increase in patent suits in recent years that is regularly omitted by those pushing for broad patent law changes. Under the 2011 America Invents Act (AIA), the ability to sue several infringers in a single suit was significantly curtailed, forcing patent holders to file multiple lawsuits to defend their patents. This change artificially increased the number of patent cases on the books, while signifying no real change in patent lawsuit activity. After conducting a detailed analysis of all patent litigation from 2010-2012, legal scholars Christopher Cotropia, Jay Kesan, and David Schwartz found this AIA change to be the primary cause for the increase in patent suits and described the supposed surge in patent troll litigation as a “mirage.”

What is even more remarkable is that several recent studies have also found that the number of patent lawsuits actually fell in 2014. For example, according to the latest update to accounting firm PwC’s annual study of patent litigation, which was released in May, the number of patent suits filed in fiscal year 2014 fell by a dramatic 13 percent. A similar study conducted last year by the litigation research firm Lex Machina found an 18 percent drop in patent litigation in calendar year 2014. Either way, it is clear that patent litigation is now going down, not up.