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More data needed in ongoing patent troll debate

Experts debate whether a patent infringement rise actually exists and if anyone needs to worry

The U.S. Congress debates legislation aimed at addressing an increase in patent infringement suits from patent trolls, while experts debate whether this alleged rise even exists at all. Some studies have shown that patent cases are not actually rising significantly.

"Right now it's like the fear of the unknown -- we actually don't know that much about patents despite a large amount of study," Daniel F. Spulber, research director of Northwestern University's Searle Center on Law, told EE Times.

Northwestern University recently received a $2 million grant from Qualcomm that's funding a five-year research project. The program is focusing on "standards-essential" patents from the top three of a 700 standards organizations that release thousands of technical standards a year. The goal is to create a comprehensive database to use to empirically analyze the standards and organizations that make data available for free to academic researchers.

"We've barely begun to scratch the surface of what we need to know, so policy makers should probably not rush to judgment, explained Spulber.

A rise of patent infringement suits from patent trolls is not the big problem, according to a U.S. Government Accounting Office report. Instead, the issue is a rise in cases about software patents and a lack of clarity about what software patents mean and who owns them.

The report states, “Our analysis indicates that regardless of the type of litigant, lawsuits involving software-related patents accounted for about 89 percent of the increase in defendants between 2007 and 2011, and most of the suits brought by [NPEs] involved software-related patents. This suggests that the focus on the identity of the litigant -- rather than the type of patent -- may be misplaced.”

Additionally, the reported pointed out that the patent office started working with the software industry in November 2011 to clarify the language used in software patents. It also called for linking data on patent suits to data on examinations of related patents at the patent office.

However, some press reports made other conclusions based on the GAO's findings. For instance a Bloomberg BusinessWeek report led with the factoid from the GAO report that "the number of lawsuits filed by so-called patent trolls increased more than fourfold from 2007 to 2011." According to Spulber, the increase from 834 suits brought by NPEs in 2007 to 3,401 suits in 2011 was an artifact of patent reform legislation enacted in 2011.

"The recent [talk of a] rising tide is counting the suits incorrectly, but that's a small thing," said Spulber.

The larger issue, he said, is the so-called troll issue is an excuse and a wedge issue to attack patents generally.


For more news on patent trolls, check out these articles:

Apple scores patent litigation victory in Germany

Supreme Court IP hearings at an all-time high

Supreme Court hears cases that could affect patent trolling

Heightened pleading standards in patent litigation reform — Requiring identification from the start

Contributing Author

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Amanda Ciccatelli

Amanda G. Ciccatelli is a Freelance Journalist for InsideCounsel, where she covers intellectual property, legal technology, patent litigation, cybersecurity, innovation, and more. She earned a B.A....

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