Seasonal Doldrums Aside, NPE Activity Remains Robust

The third quarter of 2015 brought a lull in NPE litigation activity—however, activity levels during the first nine months of the year overall exceeded those for the same period in 2014 and remained comparable to previous years (see Figure 1).

Whether due to another seasonal decline alone or accentuated by other factors as well—including a settling-in after a surge in the first half of the year—Q3 2015 dipped slightly from Q1 and Q2 in the number of defendants added to new and ongoing litigation campaigns (Figure 2). Still, as Figure 2 also shows, that number (697 defendants in Q3) is comparable to Q3 2014.

At RPX, we prefer the campaign lens for a reason. Viewing activity by litigation campaign (Figure 3) is often better than a simple count of case filings (Figures 4 and 5) at measuring the intensity of NPE activity across time. A litigation campaign comprises all cases filed by the same plaintiff (inclusive of all members in the corporate family), where each case has at least one patent or family member of a patent in common with another case in the campaign). By contrast, counting cases does not distinguish between those filed against just one defendant, as the America Invents Act now typically requires, from those filed against multiple defendants, as was often the practice before the AIA’s implementation. Thus, Figure 3 illustrates the rather steady state of NPE litigation activity for the Q1-Q3 period year to year from 2011 to present, while Figure 5 suggests an artificially sharp increase after 2011.

Note that the numbers for Q3 may change slightly to reflect data still being collected; however, any such change is not expected to be significant. We will continue to track, update, and share NPE litigation data throughout the year. RPX’s methodology is described in its annual NPE Litigation Report. Comments and questions are welcome; please send them to reports@rpxcorp.com.