2015: Facing Headwinds, NPEs Persist

A first look at data related to NPE litigation and the patent market during the past year shows that activity rebounded in 2015, after what now appears to have been a slowdown in the latter half of 2014.

As described in our RPX 2015 NPE Activity: Highlights report published today, patent validity challenges under the America Invents Act have continued to grow in popularity and enjoy measurable success—and the Supreme Court’s Alice decision has begun proving its worth, invalidating many low-quality software patents asserted in NPE suits. At the same time, the overall rate of lawsuit filings in 2015 did not slow.

Among other preliminary findings:

• Of 4,300+ IPR (inter partes review) and CBM (covered business method) petitions filed with the Patent Trial and Appeal Board (PTAB) to date, those that have reached final decision on patent validity have been, on average, very successful. However, data also show that the PTAB’s institution rates (allowing petitions to proceed to trial) were on the decline in 2014 and 2015.
• Data on patent portfolios offered for sale to RPX outside of litigation show a relatively steady state in the numbers of portfolios offered, while the average portfolio size has increased since 2010.
• NPEs sued more defendants in the Eastern District of Texas in 2015 than in any year since 2009.

The RPX 2015 NPE Activity: Highlights report provides an early look—a preliminary accounting and perspective—of some key indicators for the year. RPX will publish its annual series of full, detailed reports on NPE Litigation, the Patent Marketplace, and NPE Cost during the next several months (see previous editions here). Comments and questions are welcome at reports@rpxcorp.com.