Historically high number of patent disputes will continue in 2016, group says

By Karen Kidd | Mar 7, 2016

U.S. District Court for the Eastern District of Texas  

SAN JOSE, Calif. (Legal Newsline) – An annual report that tracks patent disputes confirms a continued trend in the increasing number of such disputes, a rise that the authors of the report say will likely continue into 2016.

Unified Patents CEO Kevin Jakel says "the crystal ball is a bit difficult" but that the latest annual report verified the trend seen in previous reports that patent disputes are on a never-before-seen rise.

"We really are at historical highs that likely will continue into 2016," Jakel said.

Unified Patents' 2015 Year End Report, released earlier this year, noted the following:

-2015 saw the highest number ever of annual patent disputes in the U.S., both litigation and those referred to the Patent Trial and Appeal Board (PTAB);

-The same year saw the second highest number every of district court patent litigations, a 14 increase compared to 2014;

-More than 60 percent of the year's patent litigation involved Non-Practicing Entities (NPEs) in high-tech patents asserted against both high-tech and non-tech companies;

-More than 90 percent of all high-tech product disputes involved NPEs; and

-Almost 95 percent of all NPE high-tech products disputes involved Patent Assertion Entities (PAEs).

Unified Patents is a member-based organization with a stated goal of reducing the number of NPE disputes in certain technology industries.

Most eye-catching in the report is the ever-increasing number of patent disputes, both in litigation and at the PTAB, in 2015, compared to 2014, which itself was a record-breaking year for such disputes. PTAB is a U.S. Patent and Trademark Office administrative law body formed in September of 2012 that decides patentability issues.

PTAB's implementation was an attempt to stem the rising amount of patent litigation.

The PTAB disputes were unintentionally responsible for a bump in filings late last year, Jakel said. That's because pleading requirements changed in November, leading to a rush in filings before those requirements went into effect.

"That is one reason why there was a jump, compared to what we saw in November of 2014," Jakel said.

Some numbers in the annual report are a little less surprising. For instance, it's no real shock that the U.S. District Court for the Eastern District of Texas saw the most patent disputes in 2015, according to the annual report. That district traditionally has had "the most plaintiff-friendly patent rules of all the jurisdictions," Jakel said.

Unified Patents' annual report specifically highlighted the Eastern District of Texas as "the top patent dispute venue in 2015" with 44 percent of all patent litigation filed in that district. The vast majority of those cases were assigned to a single judge, the report said.

"If you want to pick the jurisdiction that will give you the highest likelihood of success, you would do well to pick the Eastern District of Texas," Jakel said. "What I think is even more interesting is that it looks like Texas has increased its share of lawsuits over what it has seen in the past."

The top 10 asserting entities listed in the report filed 82 percent of their lawsuits in the Eastern District of Texas. The largest of those asserting entities was eDekka LLC, which has filed hundreds of lawsuits in the past couple of years, including 87 in a single week, most of them in the Eastern District of Texas.

That legal proliferation has earned eDekka the dubious title of “patent troll”.

Last year, 168 of eDekka's lawsuits were wiped out in a decision filed by U.S. District Judge Rodney Gilstrap. Gilstrap is the judge who hears most of the patent cases in the Eastern District of Texas, more than any other U.S. judge.

“It is very unusual to see a single entity file that many lawsuits,” Jakel said.

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