Overview

The Patent Trial and Appeal Board (PTAB) received 1,796 new petitions in 2017 making it the Board's busiest year to date. District court litigation, by contrast, dropped 17% from 4,382 new cases in 2016 to 3,649 in 2017. As a result, the total volume of patent disputes at district court and PTAB decreased 11% in 2017 compared to 2016. Though patent litigation decreased overall, almost 90% of High Tech litigation continues to be NPE related. 

Significant developments in the TC Heartland (see below), Oil States Energy Services, LLC v. Greene’s Energy Group (pending), and Allergan/St. Regis Mohawk Tribe (IPR2016-01127, -01128, -01129, -01130, -01131, and -01132) cases may help to explain this year's lower numbers. Parties may be waiting until the questions presented by these cases—which apply directly to the considerations of where to file and which parties may participate—are resolved.

Figure 1: More than 5,400 new patent disputes were filed in 2017, just below numbers for 2016 (6,114 new disputes).

Figure 2: After receiving a record number of new cases in Q1, the number of total PTAB filings for 2017 was slightly higher than in 2016.

Figure 3: PTAB was the most popular forum for patent disputes in 2017 as it received 1,796 new cases. Eastern District of Texas (ED Tex) was the most popular venue for patent litigation, but lost ground to other venues (e.g. Delaware and CD Cal) likely due to the TC Heartland decision (see below).

Figure 4: High Tech patents continue to be the most frequently asserted at the district courts and PTAB.

TC Heartland update

Figure 5: Post-TC Heartland, Delaware was the most popular venue for patent litigation.  Eastern District of Texas (ED Tex) experienced a major decrease, while Delaware (DED) , Central (CD Cal) and Northern Districts of California (ND Cal), and Northern District of Illinois (ND Ill) have seen proportional increases.

Figures 6 & 7: ED Tex accounted for 34% of all new patent cases pre-TC Heartland compared to only 15% post-TC Heartland.

For more information about the Supreme Court’s ruling in TC Heartland and to see our previous analysis of its likely impact on district court filings, see Unified’s Quantitative Assessment.

District Court

Figure 8: Consistent with data from previous quarters, approximately 60% of all new patent disputes filed in 2017 were attributed to NPEs. 

Figure 9: Most district court cases involve High Tech patents.

Figure 10: Nearly 90% of NPE litigation involves High Tech patents, whereas only 17% of non-NPE litigation involves the high tech industry.

Figure 11: Patent Assertion Entities are by far the most prevalent NPE filers, accounting for nearly two-thirds of all NPE litigation. Many PAEs are controlled by larger entities who regularly assert (e.g. IP Edge or Dominion Harbor), however we consider those entities as PAEs for this report (see "Definitions" below).

PTAB

Figure 12: PTAB received 1,796 new petitions in 2017–just above the previous record high of 1,793 cases (2015) and a 3% increase over the number of new cases filed in 2016. The PTAB in 2017 instituted 73% of petitions filed against NPE-owned patents, markedly higher than the 66% institution rate for operating company patents. For more historical data on PTAB filings and institution rates, visit our Portal.

Figure 13: Close to two-thirds of PTAB petitions involved High-Tech patents, while only 19% involved Medical and 17% involved Other patents.

Figure 14: Over half of all High Tech PTAB petitions in 2017 were filed against patents held by Patent Assertion Entities. For further analysis of these High Tech petitions, visit our Portal.

Figure 15: Unified Patents was the 4th most-frequent petitioner at the PTAB in 2017. For a complete list of Unified's filings, visit our Portal.

Figure 16: Six out of the top 10 most-challenged Patent Owners at PTAB in 2017 are NPEs. Uniloc, a notorious NPE that filed 95 new district court cases in 2017 (about 7-9 complaints per month), was the most-frequently challenged Patent Owner at PTAB in 2017. For the latest data on PTAB parties and more, visit the Analytics section on our Portal.

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
The following designations are used to identify entities involved in patent disputes. Aggregators such as IP Edge and Dominion Harbor are counted as PAEs but because of obscure ownership we do not break them out. 

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.
 
Venue in Federal District Court
ED Tex. = Eastern District of Texas
DED = Delaware
CD Cal. = Central District of California
ND Cal. = Northern District of California
ND Ill. = Northern District of Illinois

Methodology

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.
 
This data includes all District Court and PTAB litigation between January 1, 2014 and December 31, 2017.
 
Statistics include litigation 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.