Bonum Certa Men Certa

Tough Time for Patent Trolls, Only About 1 in 5 Patent Cases Won in the United States

Serial litigators are finding no sympathy in courts these days

Ginni Rometty



Summary: A look at reports that highlight activity of patent trolls, including less traditional kinds of trolls which act as satellites of larger companies that wish to distance themselves from bad publicity

DEPARTING for a moment from EPO coverage and not necessarily focusing on the USPTO either, let is be accepted that patent litigation in the US (usually "litigation central") is down sharply and the golden age of patent trolls is ending, just in time for Ray Niro's death (he is the father of patent trolling).

IAM, which often speaks for patent trolls, bemoans these latest findings from Mark Lemley et al (proponents of patent reform and opponents of patent trolls):

But in a second paper published in the Patently-O Patent Law Journal, the team at ROL together with Professor Mark Lemley of Stanford Law School and Stanford law student James Yoon, have done a deep dive into the litigation data to see just how the litigation success rates vary for patents bought on the secondary market. The study combined two data sets: one for every patent lawsuit filed in 2009 and 2010 litigated to a substantive decision; and another which analyses USPTO assignment records to pick up all transactions and assignments for the patents in question. Ultimately, they were left with 516 litigation decisions in which the patentee won 24.2%. Just over half of the patents, or 280, had been transferred before any litigation began.

Overall they found that the patent owner won in 21.1% of the cases for patents that they had bought and in 28% of the cases for patents they had developed in-house. It’s widely accepted that winning an infringement lawsuit in the US these days is an uphill struggle, whether you’re litigating your own portfolio or one you have acquired, but the study added a lot of detail when it looked at how different types of entity fared when they litigated patents they had purchased.


Not only does it show that trolls' business model is suffering; it also shows that certainty in litigation is quite low right now. Considering the low quality of many US patents (examination not as thorough as courts' examination with expert witnesses), this is hardly surprising. The USPTO gave lots of worthless patents to many parties, and some parties (like IBM or Microsoft) received tens of thousands of such worthless patents, which are only worth something when used in bulk against a small plaintiff that cannot afford to challenge them all in court. This has indeed been Microsoft's strategy against Linux and IBM now follows similar footsteps. These two companies increasingly act like trolls because they simply cannot sell products in various domains they had aspirations in (like Microsoft in mobile/devices).

The form of trolls has been shifting and changing. "PAE" is the buzzword du jour.

Patent troll CSIRO, which now faces legal barriers w.r.t. CRISPR, has begun making headlines again and someone sent us this report titled "CRISPR — the biggest biotech discovery in decades — is stuck in legal limbo". This is the "last important patent interference proceeding to come before a panel of its judges," Natalie Rahhal wrote for MIP in New York. CSIRO is not a traditional kind of troll, but in many ways it resorted to behaviour that is indistinguishable from trolls'. We wrote many articles about it around half a decade ago.

Trolling, however, is not just a passing fad because as quality of patents sinks to gutter levels in China patent trolls are starting to emerge and neighbours of China too gradually buck this trend. Some Korean banks are creating a patent troll in Korea, says IAM this week, noting the following:

It is worth pointing out that KDB Infra IP Capital is not the only SPF among MPEG-LA licensors; compatriot Intellectual Discovery as well as Japan’s IP Bridge are also pool members, having acquired SEPs from operating companies in their home countries.


We have written a great deal about MPEG-LA, a truly malicious patent troll headed by Larry Horn -- himself quite a notorious character. MPEG-LA pools together quite a few patents from quite a few companies. When it comes to litigation, it acts very much like a troll, led by Mr. Horn. Quite a few patents of MPEG-LA are expiring or already expired, but this troll resorts to evergreening using its newer pseudo 'standards', as mentioned here before.

Right now it is important to recognise the strong correlation between patent quality and the severity of the patent trolling epidemic. We regularly remind readers that most patent trolls rely primarily if not solely on software patents, so in order to combat all that trolling we need to organise against software patents everywhere.

Recent Techrights' Posts

With 9 Mentions of Azure In Its Latest Blog Post, Canonical is Again Promoting Microsoft and Intel Vendor Lock-in, Surveillance, Back Doors, Considerable Power Waste, and Defects That Cannot be Fixed
Microsoft did not even have to buy Canonical (for Canonical to act like it happened)
Links 28/03/2024: GAFAM Replacing Full-Time Workers With Interns Now
Links for the day
Consent & Debian's illegitimate constitution
Reprinted with permission from Daniel Pocock
The Time Our Server Host Died in a Car Accident
If Debian has internal problems, then they need to be illuminated and then tackled, at the very least in order to ensure we do not end up with "Deadian"
China's New 'IT' Rules Are a Massive Headache for Microsoft
On the issue of China we're neutral except when it comes to human rights issues
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, March 27, 2024
IRC logs for Wednesday, March 27, 2024
WeMakeFedora.org: harassment decision, victory for volunteers and Fedora Foundations
Reprinted with permission from Daniel Pocock
Links 27/03/2024: Terrorism Grows in Africa, Unemployment in Finland Rose Sharply in a Year, Chinese Aggression Escalates
Links for the day
Links 27/03/2024: Ericsson and Tencent Layoffs
Links for the day
Amid Online Reports of XBox Sales Collapsing, Mass Layoffs in More Teams, and Windows Making Things Worse (Admission of Losses, Rumours About XBox Canceled as a Hardware Unit)...
Windows has loads of issues, also as a gaming platform
Links 27/03/2024: BBC Resorts to CG Cruft, Akamai Blocking Blunders in Piracy Shield
Links for the day
Android Approaches 90% of the Operating Systems Market in Chad (Windows Down From 99.5% 15 Years Ago to Just 2.5% Right Now)
Windows is down to about 2% on the Web-connected client side as measured by statCounter
Sainsbury's: Let Them Eat Yoghurts (and Microsoft Downtimes When They Need Proper Food)
a social control media 'scandal' this week
IRC Proceedings: Tuesday, March 26, 2024
IRC logs for Tuesday, March 26, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Windows/Client at Microsoft Falling Sharply (Well Over 10% Decline Every Quarter), So For His Next Trick the Ponzi in Chief Merges Units, Spices Everything Up With "AI"
Hiding the steep decline of Windows/Client at Microsoft?
Free technology in housing and construction
Reprinted with permission from Daniel Pocock
We Need Open Standards With Free Software Implementations, Not "Interoperability" Alone
Sadly we're confronting misguided managers and a bunch of clowns trying to herd us all - sometimes without consent - into "clown computing"
Microsoft's Collapse in the Web Server Space Continued This Month
Microsoft is the "2%", just like Windows in some countries
Links 26/03/2024: Inflation Problems, Strikes in Finland
Links for the day
Gemini Links 26/03/2024: Losing Children, Carbon Tax Discussed
Links for the day
Mark Shuttleworth resigns from Debian: volunteer suicide and Albania questions unanswered, mass resignations continue
Reprinted with permission from Daniel Pocock
Links 26/03/2024: 6,000 Layoffs at Dell, Microsoft “XBox is in Real Trouble as a Hardware Manufacturer”
Links for the day
Gemini Links 26/03/2024: Microsofters Still Trying to 'Extend' Gemini Protocol
Links for the day
Look What IBM's Red Hat is Turning CentOS Into
For 17 years our site ran on CentOS. Thankfully we're done with that...
The Julian Paul Assange Verdict: The High Court Has Granted Assange Leave to Appeal Extradition to the United States, Decision Adjourned to May 20th Pending Assurances
The decision is out
The Microsoft and Apple Antitrust Issues Have Some But Not Many Commonalities
gist of the comparison to Microsoft
ZDNet, Sponsored by Microsoft for Paid-for Propaganda (in 'Article' Clothing), Has Added Pop-Up or Overlay to All Pages, Saying "813 Partners Will Store and Access Information on Your Device"
Avoiding ZDNet may become imperative given what it has turned into
Julian Assange Verdict 3 Hours Away
Their decision is due to be published at 1030 GMT
People Who Cover Suicide Aren't Suicidal
Assange didn't just "deteriorate". This deterioration was involuntary and very much imposed upon him.
Overworking Kills
The body usually (but not always) knows best
Former Red Hat Chief (CEO), Who Decided to Leave the Company Earlier This Month, Talks About "Cloud Company Red Hat" to CNBC
shows a lack of foresight and dependence on buzzwords
IRC Proceedings: Monday, March 25, 2024
IRC logs for Monday, March 25, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Discord Does Not Make Money, It's Spying on People and Selling Data/Control (38% is Allegedly Controlled by the Communist Party of China)
a considerable share exists
In At Least Two Nations Windows is Now Measured at 2% "Market Share" (Microsoft Really Does Not Want People to Notice That)
Ignore the mindless "AI"-washing
Internet Relay Chat (IRC) Still Has Hundreds of Thousands of Simultaneously-Online Unique Users
The scale of IRC