Blast from the (recent) past — Troll Tracker's take on 2007

In my last post I discussed briefly our 2007 patent litigation survey. In January, Patent Troll Tracker blogger Rick Frenkel reported his own survey of 2007 patent litigation, counting defendants in seven top jurisdictions and extrapolating those numbers to report a dramatic 31.5% increase in the number of defendants sued last year.

I have not checked this data, but I can say most of the lawyers I spoke to for our annual patent litigation survey thought there was a clear increase in multi-defendant lawsuits. (Google experienced an 800 percent increase in patent litigation last year, to take one prominent example.)

I think it's worth getting a variety of views out there about the year that was in patent litigation, and I'd rather let this stand in Frenkel's own voice. This post is from an archived copy I saved in late February.

Re-published from Patent Troll Tracker: Jan. 11, 2008.

Originally published at this now-defunct link. 

We reached the end of 2007. All the other blogs are reporting an overall decrease in IP litigation, a cutback from 2006, or are reporting the slightest of increases in patent filings from 2006 to 2007. That's simply not true. By the real count -- the number of defendants sued for patent infringement -- 2007 was a record year. In fact, here's my headline: "2007 shows a 30% increase in patent litigation over 2006, fueled by a 40% increase in the Eastern District of Texas." And certainly from the number of patent cases brought by non-practicing entities and so-called patent trolls, it was a year that saw a tremendous increase in both the quantity and diversity of these entities.

Before we go on, let's explore statistics for a minute. Say in 2006 there are 25 lawsuits, each against 1 defendant. Then in 2007, there are 20 lawsuits, each against 5 defendants. 25 defendants sued 1 year, 100 the next. The patentees could have filed 100 lawsuits, and in effect, did do so. Why isn't that a 4-fold increase? Yet people look just at the number of cases filed, which gets them to declare a 20% decrease.

This month, I'd like to start with the 2007 year-end statistics. Here's what I have compiled:

As a disclaimer, these numbers are taken raw from PACER/ECF without my usual investigation to make sure they aren't a transfer/duplicate/etc. But since I'm comparing several years, there needs to be an apples-to-apples comparison, and I'm not about to go look at every case in 2006!One other disclaimer: I didn't actually count every defendant in every case. I took the top jurisdictions, counted them, and extrapolated. The ones I counted constituted over two-thirds of the patent cases, so if my number of defendants is off, it's not off by much. Plus, the same extrapolation method was used for all three years I compare below.

With those disclaimers out of the way, this is what the data shows when looking at the national patent infringement statistics:

• In 1990, there were 921 patent cases nationwide (1 in EDTX), and 1,596 defendants sued (1 in EDTX).
• In 2006, there were 2,822 patent cases nationwide (264 in EDTX), and 6,118 defendants sued (996 in EDTX).
• In 2007, there were 2,953 patent cases nationwide (364 in EDTX), and 8,045 defendants sued (1,402 in EDTX).
• Comparing 2007 to 2006, nationwide there was a 4.6% increase in patent cases (I have read 6% elsewhere), but there was a 31.5% increase in the number of defendants sued for patent infringement.
• Comparing 2007 to 2006 just for the Eastern District of Texas, there was a 37.9% increase in the number of patent cases, and there was a 40.8% increase in the number of defendants sued for patent infringement.
• Comparing 2007 to 1990, nationwide there has been over a tripling in the number of patent cases (+221%), and a quintupling in the number of defendants sued for patent infringement (+404%).
• In 1990, the Eastern District of Texas accounted for roughly 1/100 of all national patent cases, and less than 1/100 of all defendants sued.
• By 2007, those EDTX numbers had grown to being roughly 1/8 of all national patent cases and 1/5 of all defendants sued.

I say pshaw to the notion that patent infringement increased only 4-6% in 2007. Look at the defendants sued: there was over a 30% increase this past year. That's the number that matters. Now where will 2008 fall?

Comments

[anonymous]

How smart is it to look at EDTX and make conclusions about patent litigation trends? I could look at EDVA in 1995 and 2007 and conclude (or at least make my readers believe) that patent litigation has gone down dramatically.

http://www.cov.com/files/Publication/eb4ec296-744c-469f-bd1b-21fff9c4435f/Presentation/PublicationAttachment/566ff812-6a3f-4888-b1cd-4bebebadf16e/801.pdf

Truth is an elusive concept.