Overview

The one lesson learned in 2020 is that not even a pandemic can stop patent litigation. This again is proving to be true as the world starts the recovery process, patent disputes have not skipped a beat. In fact, the first quarters numbers are in-line with the previous of 1,256 combined patent litigation and PTAB disputes. While litigation remains high, the PTAB appears to be taking a 7% decrease versus last year. This is partially due to the fact more companies are using the re-examination process due to the uncertainty of discretionary denials. 

Highlights:

• Western District of Texas now accounts for 25% of all patent disputes, with NPE-related litigation out pacing any other jurisdiction. 

• NPE-related litigation appears to be on track with a projected 2,336 cases, which is a 1.75% increase from last year.

• Samsung, again, is the most prolific PTAB filer (49 filings) and at the same time are the most targeted defendant in patent litigation (19 cases as first-named defendant).

• Ericsson was the most attacked patent owner at the PTAB with 30 petitions filed against them. 

• Unified, still remains the 5th overall filer with 226 and has expanded its efforts with 9 re-examinations and 8 Chinese oppositions this year. In addition, last year Unified also filed 6 EPO oppositions, 1 UK opposition and 2 Japanese oppositions from last year.

Figure 1: If the first quarter is any indication of how 2021 will play out, patent litigation in general appears to be matching the previous plateau trend from the past few years. Interestingly, it would appear that PTAB activity will also be down this year, possibly due to companies taking advantage of Re-Exams with the uncertainty of the discretionary denials. 

Figure 2: However, the quarter-by-quarter trend generally shows that patent litigation and PTAB filings continue to grow. This quarter saw a combined 1256 filings, with 937 district court cases and 327 PTAB filings. This is a 4.4% increase from Q1 2020.

Figure 3: While the PTAB remained the most popular venue for patent disputes, the Western District of Texas still is leading the charge as the rocket docket with 88% of all cases (204 out of 233) filed by NPEs. This is a 5% increase from 2020 where 83% of cases were NPE related. In addition, 25% (233 out of 937) of all patent cases originate in the Western District of Texas. View all District Court and PTAB litigation on Unified’s Portal.

Figure 4: High-Tech litigation continues to dominate both district courts and the PTAB, comprising 70% (661 out of 937 cases) and 70% (226 out of 327 filings) respectively. View High-Tech litigation on Unified’s Portal.

District Court

Figure 5: NPE-related litigation is projected to nearly match last year's total and will be expected to keep climbing as operating companies continue to divest assets.

Figure 6: Looking quarter-by-quarter NPE-related litigation continues to remain at its 5-year average of 59% This quarter litigation increased 7% overall versus Q1 of 2020. 

Figure 7: Cedar Lane Technologies was the highest asserting entity in the Q1 of 2021. Following previous trends, 8 of the top-10 named asserting entities in 2021, were NPEs View District Court litigation on Unified’s Portal.

Figure 8: Samsung entities were the most targeted in Q1 of 2021. Samsung Electronics saw 19 suits filed against them Surprisingly, Walmart came in at number 7, while the litigation seemed to be target network, computer, and cellular manufacturers. View District Court litigation on Unified’s Portal.

Figure 9: In Q1 of 2021, 70% of all new US district court patent cases involve High-Tech companies. This is up 5% from last year.

Figure 10: NPE activity in the High-Tech sector alone continues to contribute more 2021 patent infringement cases than all non-NPE patent litigation combined.  Except for 23, NPEs target the High-Tech sector 93% of the time View High-Tech litigation on Unified’s Portal.

Figure 11: NPEs accounted for 85% of assertions in High-Tech Litigation in 2021. View all 2021 District Court litigation on Unified’s Portal.

PTAB Disputes

Figure 12: Based on Q1 2021, PTAB filings are projected to decrease by 7% this year. This most likely due to the combination of companies turning to re-examinations and the uncertainty of discretionary denials. The Board’s institution rate in inter partes reviews continues to decrease and is now at 56.1%. More details for these PTAB proceedings are available on Unified’s Portal.

Figure 13: This quarter, the PTAB received a total 327 requests for inter partes reviews, nearly matching Q1 of 2020. NPE related-filings accounted for 40% of all filings, matching the 5-year average. 

Figure 14: Consistent with district court proceedings, approximately 70% of petitions filed in 2021 involved High-Tech companies, an increase of 7%. 

Figure 15: Approximately 55% of all AIA challenges filed in 2021 that involved High-Tech companies related to NPE-controlled patents. Explore this data further on Unified’s Portal.

Figure 16: IPRs remained the most popular post-grant proceeding at the PTAB. Explore this data further on Unified’s Portal.

Figure 17: This quarter saw Samsung as the most frequent petitioner with 49. Unified, still remains the 5th overall filer with 226. This year alone Unified has filed 9 re-examinations and 8 Chinese oppositions, in addition to the 6 EPO oppositions, 1 UK opposition and 2 Japanese Oppositions from last year. View all of Unified’s cases on Unified’s Portal.

Figure 18: NPEs were the most challenged Patent Owner this year, accounting for 6 of the top 10. View all PTAB cases on the 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

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.

Venues

CACD = Central District of California

CAND = Northern District of California

DED = Delaware

NJD = New Jersey

NDIL = Northern District of Illinois

SDNY = Southern District of New York

TXED = Eastern District of Texas

TXWD = Western District of Texas

Methodology

This report includes all District Court and PTAB litigations between January 1, 2015 and March 31, 2021.

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. Statistics include litigations 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.

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