The Dark Patent Troll Rises: Now 40% Of All Patent Litigation

from the leeches dept

With story upon story upon story (upon story) of how patent trolls, those non-producing entities that derive income solely through litigation and threat thereof, are enormous leeches on innovation and progress, you may have noticed something. You possibly thought to yourself, “it sure seems like we’re hearing more about these vampiric bastards these days”. Guess what? You are, because there’s more of them. Vastly more.

According to a recent study by Robin Feldman of UC Hastings College of Law and Lex Machina, the percentage of patent cases finding their way to court jumped from 22% in 2007 to 40% in 2011. Note that the following graph is a corrected graph issued after the initial report by the authors.

The study was inspired by the America Invents Act, last year’s largely toothless overhaul of the patent system. In it, Congress asked the Government Accountability Office (GAO) to study the impact of non-practicing entities—a more clinical term for patent trolls—on the economy. Because Lex Machina already had a database of patent litigation, the GAO asked it to produce a random sample of 100 patent lawsuits for each year from 2007 to 2011. In addition to supplying the GAO with the data it needed for its forthcoming study, Lex Machina decided to publish its own interpretations of the sample.

As the Ars Technica piece notes, that shocking statistic above doesn’t even tell the whole story. When you consider that patent litigation as a total has jumped in volume, coupled with the number/percentage of patent troll threats settling well outside of the courtroom, experts figure that the size of the patent troll leeches are roughly double the size of your average adult kraken.

“From all appearances, lawsuits filed are only the tip of the iceberg (editors note: kraken-sized leeches often hide under iceberg tips), and a major operating company may face hundreds of invitations to license for every lawsuit,” the authors write.

The America Invents Act was enacted in the final months of the study period. And there was at least one minor change designed to deter troll behavior: the law made it harder to name many defendants in a single lawsuit. But the law’s main provisions, such as the switch from a “first to invent” rule to “first to file” is unlikely to affect the volume of troll litigation.

Hell, this all sounds like promoting the progress to me. That, or some flavor of patent abuse. Surely it’s one of the two…

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Comments on “The Dark Patent Troll Rises: Now 40% Of All Patent Litigation”

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DannyB (profile) says:

Re: Re:

If an adult Kraken, or worse, a patent troll hides under a tip of an iceberg (using only the tip of an iceberg as stylish headwear) then what is under this tip of an iceberg is either a Kraken or a patent troll, not an iceberg.

Camouflage means you think you are seeing one thing, but something else is hiding there.

(NOTE: this post is neither funny nor insightful. Yes, seriously.)

Michael (profile) says:

Re: Re: Re:

Ok, I’ll add to this bit of craziness.

If one uses the tip of an iceberg as a hat – meaning there is no more ice under the tip of the iceberg, the tip is the entire iceberg – making the tip the top-most portion of this relatively small iceberg. Of course, anything under the entire iceberg is, by definition, under the tip of the iceberg as well.

Mesonoxian Eve (profile) says:

But it is promoting the progress. Look at all those court employees who are now working countless hours filing all these cases. Look at all those lawyers chuckling under their breath as they count those billable hours. Look at all those employees hired by companies to fend off these patent trolls.

All these jobs indicates there’s a promotion in progress.

Sadly, the Constitution doesn’t say what area was to receive the benefits of the promotion.


Michael (profile) says:

Patent trolling needs to be protected!

Patent trolling is an important industry and needs to be protected. If we alter the patent system in a way that reduces patent trolling, I recommend we add a small tax to innovative companies that is funneled through some kind of collection agency that is then used to prop up this poor dying industry.

Remember, these patent trolls hire assistants, and those assistants eat popcorn, and those popcorn farmers are already in dire need of help because of the dying film industry.

Anonymous Coward says:

Re: Patent trolling needs to be protected!

The patent trolls are vital to the survival of child porn, terrorism and piracy!
Killing them is like letting the jedi knights win in star wars. It would make for a horrible world without possibility of pushing laws though on account of the above mentioned and we all know that is a world nobody wants to live in!

Suzanne Lainson (profile) says:

Someone is going to have to pay for lobbying

I think the patent system is broken. However, I don’t think you’ll see changes in the laws until one or more entities pick up the tab to lobby Washington for this. And the entities with money are huge corporations and trade organizations. But how many of them have made this their primary cause?

Suzanne Lainson (profile) says:

Re: Re: Someone is going to have to pay for lobbying

Yes, that’s what I think too.

Businesses and corporations don’t lobby for causes they think will benefit society. They lobby for issues that will benefit them. So I am skeptical of the whole system. Politicians are most easily persuaded with money (to get them elected or for someone paying access to them). And the money comes from entities with a self-interest.

Luckily at the local and state level here in Colorado, we have citizen referendums which can get issues on the ballot. That, too, takes money: to collect the necessary signatures, and to fight organized campaigns to stop such referendums. But at least citizens can bring attention to issues that are important to them but which might fall through the cracks otherwise.

Anonymous Coward says:

Damn those monetizers actually paying people for their patents so they can own them and license them out after. Such bastards! Those poor inventors, getting paid and all, that really, really sucks!

Horrible patent system that sees the inventors getting paid and the users of the patents paying. That is so horrible!

Really Mike, you need to get some new material. This shit ain’t cool anymore.

Anonymous Coward says:

Re: Re: Re:

No, Ars Technica just ran a piece without critical thinking. The author of the report is someone who wants to abolish or change patents significantly (similar to Mike), which sort of tells you what information that person will extract and highlight.

It’s not surprising to see this report on Techdirt. It’s a nice covering to link the Ars Technica story instead of the report itself, so that there is a gap between the author and the story here. But really:

rofessor Feldman’s first book, The Role of Science in Law, was published by Oxford University Press in 2009. Her second book, Rethinking Patent Law was published by Harvard University Press in 2012.

I would say that the study author might be just a wee bit biased towards one side.

abc gum says:

Re: Re:


NPEs produce nothing other than BS and billable hours, buying up worthless paper claiming to own broad undefined ideas with little to no substance – what could possibly go wrong.

I realize there some nuts who think that “Intellectual Property” should be traded like a commodity, however there are numerous reasons as to why this is a really bad idea.

How are pizza futures doing today – it is a vegetable and are those not traded in the market?

Barney says:


ya sucks to be mosanto suing farmers and extorting poor food nations so they have to bend over to there evil domination and then can sit back doign coke and crack in the back room while laughing/

BOY i cant wait for a food replicator and a replicator in general….ill fraking pirate everythign i need wihtout any concern of you or your evil prick kind

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