Another recent article, cleverly titled,
Of Trolls, Davids, Goliaths, and Kings: Narratives and Evidence in the Litigation of High-Tech Patents,
seeks to quantify the most popular “type” of patent disputes. Authored
by Santa Clara University School of Law Professor Colleen Chien, the
article studies case filings from January 2000 to March 2008. Chien
investigated the prevalence of a number of common patent litigation
scenarios including (but not limited to) suits: a) between two large
corporations; b) between an individual inventor and a company; and c)
by patent trolls.
After sorting through approximately 2,300
cases, Chien found that 17 percent of all cases involved patent trolls.
Expecting a higher percentage in light of the tremendous controversy
surrounding patent trolls, Chien realized that these results failed to
account for a typical patent troll tactic. Often, patent trolls will
sue a number of distinct defendants in a single suit, and it is not
uncommon for patent trolls to adopt a shotgun approach, accusing more
than a dozen unrelated parties of infringement in a single case.
Accounting for each defendant as a “separate” case, Chien found that
the percentage of suits involving patent trolls rose to 26 percent. The
results of her study also indicated that patent trolls filed 40 percent
of all suits involving financial patents.
Furthermore, Chien
noted the statistics indicated that lawsuits involving patent trolls
were the fastest to be resolved, with the average suit lasting only 9.1
months. By comparison, suits involving two large corporations, or suits
involving an individual inventor against a company averaged more than
14 months before resolution. As the author notes, these results support
the notion that patent trolls are looking for quick settlements and
royalty payments as soon as possible, and are not as interested in the
ultimate merits of the case.
While Chien does shed light into
the extent of patent troll activity, the results are far from perfect.
For instance, the results of the study were limited to only
investigating computer hardware, computer software, and financial
invention patents. Granted, these categories are three of the most
common in terms of litigated patents, but Chien’s study would provide a
much more complete view on the effect of patent trolls in litigation,
had her results accounted for other areas as well. Still, Chien notes
that her study is deliberately conservative in her results,
particularly with regards to counting patent trolls. A party was
classified as a patent troll only where there was some sort of
independent labeling (i.e. in a court document, news report, blog
posting etc) to corroborate it, and did not count those individuals
suing in their own name, but perhaps on behalf of a patent troll.
Additionally,
Chien noted where there was no information about a party available
publicly, that party was identified as a “private company”, when in
fact they could have been a patent troll in reality. Consequently, the
true extent of the patent troll influence is likely to rise, though it
is unclear at this point just how far the reach extends. Undoubtedly,
we should expect an increase from the 17 and 26 percent of all suits,
and 40 percent of financial patent suits as noted prior, once a more
thorough investigation is completed.
