After peaking in 2004, with 3,075 patent cases, patent litigation took a dip in 2005 (2,720 cases), only to tick up slightly in 2006 (2,830 cases). It's looking like 2007 will be a flat year for patent litigation, with the likelihood that the number of cases will dip from 2006.
So far, according to data obtained from Justia, 2007 has seen 2,577 patent-related cases filed in the district courts around the United States. Broken down by month, the filings appear as follows:
- January - 201 complaints filed
- February - 181 complaints filed
- March - 262 complaints filed
- April - 219 complaints filed
- May - 265 complaints filed
- June - 280 complaints filed
- July - 225 complaints filed
- August - 222 complaints filed
- September - 214 complaints filed
- October - 288 complaints filed
- November - 220 complaints filed
One of the patent litigation trends that doesn't receive much coverage is the number of defendants that are named per case. While I haven't seen any hard data on this, it appears that the number of defendants per case may be rising.
Anecdotally, two recent cases illustrate this phenomenon. The first, filed in the ED Tex. on Nov. 27, is Harthcock v. MIPS Technologies Inc et al. (2:2007-cv-00515), where 91 defendants were named. It appears that the patentee sued the allegedly infringing manufacturer, along with every single one of the manufacturer's customers, and every single one of the manufacturer's customers' retailers. According to the Patent Troll Tracker, counting each defendant separately across all cases, the filings on Nov. 27 resulted in 113 new patent infringement suits in the ED Tex. This single day resulted in more companies being sued than have been sued in all of 2007 so far in Detroit, Dallas, ED VA, Minnesota, Boston, or Philadelphia.
The second is Technology Patents LLC v. Deutsche Telekom AG et al. (8:2007-cv-03012), filed on Nov. 8 in the District Court for the District of Maryland, in which 131 defendants were named in a lawsuit directed to SMS technology (see more from the Maryland IP Law Blog here). Considering the defendants individually, these two cases alone represent almost 10% of all patent litigation filed for the entire U.S. (I realize there are statistical anomalies in this approach, but you get the point).
While this is not a new phenomenon, it appears that defendant "clustering" should increase in the coming year, especially in light of the CAFC's Sandisk ruling that expanded the scope of DJ actions. In the case of non-practicing entities, the earlier practice of cherry-picking defendants one-by-one has now become increasingly risky. Also, as Jim Skippen, chief executive of Wi-LAN commented recently, there are "significant economies of scale" in suing multiple defendants.See 271 Blog "Patent Litigation Statistics" (link)
See 271 Blog post on PWC Patent Litigation Survey (link)
See also 271 Blog post: Kesan & Ball, "How Are Patent Cases Resolved? An Empirical Examination of the Adjudication and Settlement of Patent Disputes" (link)