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Intellectual Property: Assessing Factors That Affect Patent Infringement Litigation Could Help Improve Patent Quality

NCJ Number
Date Published
August 2013
61 pages
This report examines and describes the volume and characteristics of recent patent litigation activity for 2007 to 2011.
This report examines the volume and characteristics of recent patent litigation activity; views of stakeholders knowledgeable in patent litigation on key factors that have contributed to recent patent litigation; what developments in the judicial system may affect patent litigation; and what actions, if any, the U.S. Patent and Trademark Office (PTO) has recently taken that may affect patent litigation in the future. Results show that from 2000 to 2010, the number of patent infringement lawsuits in the Federal courts fluctuated slightly and from 2010 to 2011, and the number of such lawsuits increased by about a third. Some stakeholders stated that the increase in 2011 was most likely influenced by the anticipation of changes in the 2011 Leahy-Smith America Invents Act (AIA), which made several significant changes to the U.S. patent system, including limiting the number of defendants in a lawsuit, causing some plaintiffs that would have previously filed a single lawsuit with multiple defendants to break the lawsuit into multiple lawsuits. Detailed analysis of a representative sample of 500 lawsuits from 2007 to 2011 shows that the number of overall defendants in patent infringement lawsuits increased by about 129 percent over this period. These data also show that companies that make products brought most of the lawsuits and that non-practicing entities (NPE) brought about a fifth of all lawsuits. Data also found that lawsuits involving software-related patents accounted for about 89 percent of the increase in defendants over this period. Table, figures, and appendixes