May 15, 2014
On December 5, 2013, the Innovation Act (H.R. 3309) was passed by the House in an effort to combat activities of Non-Practicing Entities. The bill, introduced by Representative Robert Goodlatte (R-Va) is one of many that aim to address “abusive patent practices that have damaged our patent system and resulted in significant economic harm to our nation.”
The alleged harm comes from “patent trolls” whose aim is to monetize patents solely by filing infringement claims and not by otherwise exploiting the inventions through say, the manufacture of an innovative new product. A recent study conducted by the Government Accountability Office estimated one-fifth of all patent infringement lawsuits are filed by patent owners that do not make or sell a product.
The Innovation Act plans to dissuade trolling by, among other things, requiring a heightened pleading standard for infringement claims, adding cost-shifting provisions which impose a “loser-pays” penalty and penalizing “purposely evasive” demand letters. For more, see Jeff Becker’s article in the Intellectual Property & Technology Law Journal, The Latest in Patent Reform: The Innovation Act, 3 Intell. Prop. & Tech. L.J. 34 (2014).
Who’s a “Patent Troll”?
An organization called Patent Freedom tracks the activity of NPEs. Their definition is here. For a nuanced look at defining “troll,” see Who is a Troll? Not a Simple Answer, from the Sedona Conference Journal, 7 Sedona Cof. J. 159.
We used Patent Freedom’s list of NPEs with the largest patent holdings to compile the table below. Using a simple docket search, we attempted to identify the most litigious NPE’s from the last five years. Results indicate that that the number of patent holdings has little relation to the occurrence of new filings. For example, Walker Digital and Wi-Lan are among the most litigious, despite holding of less than 1,000 patents. One of the more notorious “trolls,” Acacia, has no new filings in the last five years (though, we find 112 going back 15 years). Importantly, this data excludes any “purposely evasive” activities that might be employed by an NPE which result in settlement prior to filing suit.
We compiled the data for the table above using searching for NPE’s as plaintiffs in WestlawNext dockets:
adv: NOS(830) and PLA(“intellectual ventures” “walker digital” wi-lan “round rock research” “interval licensing” “conversant Intellectual property management” “rock-star consortium” “institute #for information industry” ipventure “acacia technologies” “un-wired planet” interdigital spherix tessera “intertrust technologies” rambus stc.unm “wisconsin alumni research foundation” “Commonwealth Scientific #and Industrial Research organization”) and FLD(last 5 years)
Generally, to find the number of cases involving a particular NPE try searching WestlawNext Dockets for:
PTN(“NPE Name”) & NOS(830)