Top Plaintiffs are Operating Cos Not NPEs, New Study Shows

Seven of the top ten plaintiffs with the most patents asserted in cases open in 2013 are operating companies.

Data presented in a report released this morning by Lex Machina, the legal analytics firm based in Silicon Valley, indicate that businesses that sell products are much more likely to be involved in active patent litigation than so-called patent “trolls.”

This may come as a surprise to many trying to weaken the patent system because of NPE activity. “2013 Patent Litigation Year in Review” presents a host of timely facts, among them plaintiffs with the most patents enforced. Only two NPEs Intellectual Ventures (twice) and RAK Technology Licensing, are among the top ten companies.

LM Ericsson and Ericsson, Inc. were the most litigious, with a total of 176 active cases open. Motorola Mobility, owned by Google, and Apple, also were on the top ten list, each with 52 active cases.

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Figure 20:
Plaintiffs With Most Patents
Asserted in Cases Open During 2013

1. Telefonaktiebolaget LM Ericsson 103
2. Intellectual Ventures I 100
3. Intellectual Ventures II 81
4. Ericsson, Inc. 73
5. Finisar 59
6. Ronald A. Katz Technology Licensing 65
7. Motorola Mobility 52
8. Apple 52
9. Philips Electronics 41
10. Pfizer 30

*Intellectual Ventures I and II and Ronald A. Katz Technology Licensing are NPEs.
The remaining seven plaintiffs are operating companies.

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Suits, Trials, Damages 

Some of the most frequently asserted patents originated at Xerox, AT&T and Stamford University. Five of the top ten damages awards were in the life sciences, not IT. Average awards were up 28%, “dragged higher,” the report states, by “healdline-stealing damages.”

The median patent damages award for 2013 was still slightly over $1 million, at $1,256,920. It is up but remains relatively low given the hoopla surrounding patent awards and the increase in suits filed. (Much of the increase in suits filed can be attributed to “joinder” provisions in the America Invents Act, which make it more difficult to enforce against multiple parties in a single suit.)

There were just 128 patent trials last year, a number which has varied little for more than 20 years. This is amazing given the explosion in patents granted (a total of 302,948 in 2013 alone), increasing complexity of innovation and the number and importance of IP rights in consumer and other products.

The entire Lex Machina report can be found here. It compares favorably with those patent litigation reports from RPX and PwC.

Illustration source: lexmachina.com