Semiconductor fabrication in the United States has been on the wane for years.  This resulted in the current microchip shortage.  Nonetheless, as legislation is being debated to add incentives for semiconductor manufacturing in the United States, several companies have already begun to increase their efforts.  Intel recently announced in March that it would build two chip plants in Arizona, and TSMC (Taiwan Semiconductor Manufacturing Company) also announced it is opening a plant there as well. Reportedly totalling USD $32 Billion, these projects are at least in part an attempt to address the ever growing chip shortage that is affecting many industries. 

For example, the chip shortages recently hit automotive manufacturing hard. As car dealerships run out of inventory, many vehicles are stuck at the assembly lines, virtually completed and simply awaiting a chip or two. It seems that the perfect storm of a long pandemic, a brief recession, and an unanticipated increase in demand for chips in personal devices spurred by a remote-based work environment all contributed to the chip shortage in many industries, including automotive manufacturing. 

But there is another storm sweeping over semiconductors in the United States. Just as companies begin efforts to address the chip shortages, patent litigation related to semiconductors is on the rise.  In particular, non-practicing entities (NPEs) are bringing a major portion of semiconductor patent litigation, fueled largely by an influx of litigation financing into the once-aloof area. Indeed, while overall litigation is expected to see a slight drop (mostly attributed to operating companies focusing on recovery rather than rapacity), with a 42% decrease from 2019 to 2020, semiconductor litigation has risen steadily for the past three years, and could overtake last year’s all-time high if the threatened clouds break.

That increase in litigation is driven by increased non-practicing entity (NPE) suits in the semiconductor space. Indeed, the NPE litigation accounted for nearly 80% of all litigation in 2021, a 7% increase from 2020, and is set to rise, given the selloffs of major semiconductor portfolios owned by Intellectual Ventures, LG, and other large patent holders.

This is in stark contrast to the industry’s rise in the 80s and 90s, when operating companies fought large cross-licensing battles. Now, the litigation landscape is dominated by NPEs. Overall, NPEs have accounted for nearly 75% of all semiconductor litigation over the past five years.

And recently, the NPEs have been backed by a new breed of moneymaker, with 52.4% of all NPE litigation related to a patent aggregator—an entity responsible for multiple patent portfolios litigated through multiple subsidiaries. (NPE aggregators are defined as NPEs that have more than one affiliated subsidiary also bringing patent litigation.)

And third-party financing has found its way to NPE bringing chip-related suits, with 25% of suits being backed by third-party financing—i.e., patent litigation funding from private, unrelated sources. (Third-party financing is defined as any third party with a financial interest supporting the litigation or assertion, other than the assertors themselves.)

This trend can be seen below when looking at the top-10 plaintiffs of 2021, with the financially backed IP Edge bringing 19 separate semiconductor assertion campaigns to date. The much better-funded Vector Capital Corporation and its cohort, however, brought bigger, longer-term litigation targeted for much bigger settlement numbers, and the Fortress IP-backed Netlist reportedly signed a $40 million licensing agreement with SK Hynix; the Magnetar Capital-backed Neodron has reportedly settled for eight figures against multiple defendants, including in the ongoing disputes with Samsung over the scope of potentially related litigation-driven settlement licenses.

The targets of 2021 have generally been either chip manufacturers or, quite frequently, on device manufacturers or product manufacturers whose products nonetheless rely on semiconductors. Not listed above are multiple selloffs from Intellectual Ventures to subsidiaries of Longhorn IP, like Katana Silicon Technologies or Trenchant Blade Technologies, which have immediately been turned around against chip manufacturers and their customers. Perennial NPE Dominion Harbor, listed above, has filed a number of chip-level campaigns. PTAB activity against semiconductor patents is at an all-time high, and even smaller repeat NPEs like the Jon Rowan entities have gotten into the game with their Liberty Patents subsidiary, listed above.

The defendant list above is partially obscured by indemnification requests and suits against consumer-facing end user products, but the representative list above shows that chip manufacturers themselves are seeing a fair number of NPE litigation asserted directly against them on their chips or fabrication processes. Recent suits by companies backed by Magnetar Capital—such as the Arigna suit—target automotive manufacturers, but rely in part on chips and hardware; other suits have originally sued some chip manufacturers, then moved on to the end users. Either way, it is clear that NPEs and litigation financiers are attracted to chip portfolios 

2021 is proving to be a two-front battle for most semiconductor manufacturers. While they actively address the world-wide chip shortage, they are being faced with litigation brought by NPEs that have access to large portfolios and financing. 

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