January 7, 2006
Patent Statistics Update
Granted patents & lawsuits are down while application filings rise. Small business and individual inventors, "the little guy", dominate high technology patenting, but have a tough road to hoe in profiting from their inventions.
As previously reported, there was an 11% drop in patent infringement lawsuits in 2005, breaking a decade-long streak. This coincided with a 13% dip in patent allowances concomitant with a 7% increase in application filings. Note that there's no correlation between patents granted and lawsuits, particularly year to year, as most litigation cases are filed on older patents, where the market later catches up on someone's invention.
Peter Detkin of Intellectual Ventures reports that the number of per patent lawsuits declined 7% from 1997 to 2003. The top patent plaintiffs 2002-2005 were Laughlin Products, inventor of body spray painting (Mist-On Tanning) (169), Monsanto, plant genetic mod king, (108), and Acacia Media Technologies, patent troll extraordinaire (103). Over the past five years, patent trolls, i.e., non-product companies, had a hand in a measly 2% of all patent litigation cases.
Mr. Detkin's collation of high tech patentees -
Processors (class 172): the little guy = 25.3%, IBM = 12.2%, Intel = 9%, AMD = 6.4%;
Databases (class 707): the little guy = 36.1%, IBM = 19.1%, Microsoft = 5.4%, Sun = 2.9%, Hitachi = 2.6%, Oracle = 2.3%;
Solid-state devices (class 257): the little guy = 16.4%, Micron Technology = 4.9%, IBM = 4.6%, NEC = 3.9%, Toshiba = 3.8%, Mitsubishi = 3.5%.
How's a little guy going to profit from his invention? Sell it to a patent licensing specialist (aka troll), because it's next to impossible to get a company to license without muscle, and it is impossible to enforce patent rights without buckets of money. As top dog patent plaintiff Tom Laughlin of Laughlin Products said, "The patent system in general has its kinks, and the litigation part is really messed up. It certainly doesn't favor the small inventor."
Posted by Patent Hawk at January 7, 2006 12:30 AM | Patents In Business
>litigation really messed up.
Especially when the courts rely so heavily upon experts.
I think that it is risky to rely upon an attorney argument of facts backed up by research documents against expert testimony in order to keep costs down for the little guy.
I think there are constitutional issues at hand if the fed circuit were to state per se that experts must be employed (because of the excessive costs).
Posted by: cww at January 8, 2006 4:41 PM
With regard to experts, their input is now clearly devalued in light of the Phillips v. AWH ruling. See: http://www.patenthawk.com/blog/archives/2005/07/dissing_diction.html
"However, conclusory, unsupported assertions by experts as to the definition of a claim term are not useful to a court. Similarly, a court should discount any expert testimony “that is clearly at odds with the claim construction mandated by the claims themselves, the written description, and the prosecution history, in other words, with the written record of the patent.” Key Pharms., 161 F.3d at 716.
We have viewed extrinsic evidence in general as less reliable than the patent and its prosecution history in determining how to read claim terms, for several reasons."
Posted by: Patent Hawk at January 8, 2006 9:59 PM
Yes, that is a valid point.
Their input does still hold significant impact however on issues other than claim construction, such as infringement and obviousness.
Posted by: cww at January 9, 2006 8:13 AM