This post originally appeared in Roll Call.
The Senate’s decision to pull the plug on meaningful patent reform legislation leaves a serious, costly problem unsolved.
Patent litigation abuse is rampant and it’s getting worse. According to the first annual “2013 Patent Litigation Year in Review,” by the respected legal data analytics firm Lex Machina, patent cases hit record levels last year with 6,092 such lawsuits filed in U.S. District Courts, a 12.4 percent increase over 2012. Meanwhile, the average damages awarded increased by 28 percent to $34.7 million.
Most new patent cases were filed by ten plaintiffs that purchase patents — not to commercialize them — but to file lawsuits against companies that make use of these so-called inventions.
Known as “patent trolls” — or more politely, as “non-practicing entities,” patent assertion entities,” and “patent monetizers” — these perpetual plaintiffs buy up broad, vague patents and then claim their wide-ranging applications.
Armed with these patents, these entities sue operating companies that make and sell things, arguing that their patents cover those products and services, and demanding that the companies pay up. These companies can range from the most innovative major corporations to the small businesses that are end-users of basic technologies, such as shopping cart software or Wi-Fi routers.
The patent trolls’ not-so-secret strategy? Because of the high costs and great risks of a lawsuit, many companies will simply settle, paying them to go away. This is especially true for startups and small businesses that cannot afford to fight the trolls in federal court. In short, the trolls always win.
Carefully targeting where as well as who they sue, the patent trolls file their legal actions in the U.S. District Courts where they have reason to believe they stand the best chance of winning large judgments. In fact, patent trolls filed a growing number of their new cases in just two district courts: the Eastern District of Texas, with 1,495 cases, 20 percent more than in 2012, and the District of Delaware, with 1,366 cases, 33 percent more than in 2012.
These trolls tend to rely on old patents with questionable applicability to modern technology. A patent lasts for 20 years, but we all know that technology moves much more quickly than that. So it should come as no surprise that of the 4,917 patents at issue last year, 61 percent — 3,032 — had not been the subject of lawsuits over the past decade or more.
Not surprisingly, all of the top ten filers of patent cases in 2013 were patent trolls. In fact, the top three — ArrivalStar, Wynncom and Thermolife — each filed more than 100 cases. And six of the ten most frequently asserted patents — the subject of lawsuits by ArrivalStar — covered systems for tracking and monitoring vehicles. In many instances, ArrivalStar’s targets weren’t the companies who pioneered those systems, but the small municipalities who try to provide their citizens bus-tracking software, or the U.S. government for U.S.P.S.’s package tracking software.
These litigation tactics — using old and vague patents, and focusing on certain courts — do not add any value to the economy. Instead, they extract valuable resources from companies that could, and should, be commercializing new products and services, building their businesses, creating new jobs, hiring new workers, and otherwise contributing to American competitiveness and prosperity.
That is why it is so important that Congress not abandon efforts to pass comprehensive patent reform legislation that will protect productive businesses and rein in the patent trolls.
As this study of patent litigation reveals, the America Invents Act — passed just a few years ago — simply was not effective enough. Since 2011, we have seen a record number of patent lawsuits filed, and the average damages awarded have reached a new high.
Every day that goes by without reform costs our economy money. Annually, that number stretches into the billions. And every day, American businesses are targeted with spurious claims of infringement, requiring that they shift their focus away from growing their businesses.
Once and for all, it’s time to stop the patent trolls from taking their toll on American innovation, American businesses, and American jobs. Congress should not give up on patent reform. The cost of inaction is simply too high.