The Rise of Patent Litigation in America: 1980 – 2012

By Gene Quinn
April 9, 2013

There is no doubt about it. Even a casual glance at patent litigation statistics shows a sharp increase in the number of patent cases being initiated over the last several years. For example, see the following three charts. The data for which comes from the Office of Administrative of the United States Courts, and dates back to research I initially started in 1997 while working on my Master’s thesis, which dealt with patent litigation and the use of alternative dispute resolution.

Interestingly, however, where the real growth in patent litigation appears to be is before trial. Between 1980 and 2011 the number of patent cases reaching trial ranged between a low of 83 (in both FY 2001 and FY 2003) and a high of 114 (in FY 2008). Lest you believe this is out of the ordinary, in FY 1982 there were 106 trials and in FY 1983 there were 112 trials. Thus, for the time period from 1980 to 2011 the number of trials remained remarkably constant, averaging 100.03 trials per year. In FY 2012 the number of trials spiked to 139. Even the number of patent trials in FY 2012 is not extraordinarily high given the steep rise in number of lawsuits initiated in recent years. Remember, when there were only approximately 800 patent litigations initiated there were still more or less 100 patent trials a year.

So what explains the significant uptick in the number of patent litigations initiated? First, the prohibition against suing numerous defendants in a single case ushered in by the America Invents Act (AIA) is to blame for at least a portion of the increase that occurs after September 16, 2011. Additionally, the increase can in part be explained by the fact that there are more patents being issued. Of course, this has been a trend for years though. See chart below.

Still, there seems to be something more happening in recent years to account for the increase in number of patent litigations commenced. Many blame patent assertion entities, PAEs, which to some is synonymous with the pejorative term “patent troll.” Of course, it isn’t as simple as many in the popular press would like you to believe.

There is nothing inherently wrong or evil about enforcing patent rights that are being infringed. Patents are granted by the United States Patent and Trademark Office and give the owner the right to exclude. It cannot be illegal, immoral or otherwise inappropriate to exercise a right duly granted and recognized. Thus, there is nothing inherently wrong, immoral or evil about enforcement activities brought by a patent assertion entity (PAE) or patent litigator representing a patent owner on a contingency basis. The focus cannot be on those who engage in justified assertion. Frankly, if anything there is an extreme under-assertion of patent rights owing to the fact that so many patent owners who have rights that are being infringed cannot afford the exorbitant cost associated with pursuing infringers. That is why many are again working to attempt to create a patent small claims process.

As far as I am concerned the problem is not generically with patent assertion entities, or even the likes of entities like Acacia Research, or with patent litigators such as Ray Niro. Both engage in comprehensive due diligence before getting involved with a patent owner, turning away more than 99% of what is presented to them for evaluation. Actors like Acacia and Niro seek to enforce good patents that are widely being infringed. Somewhere along the way society has chosen to vilify them and the patent owners they represent as if striving to achieve a patent on an innovation of fundamental importance is evil incarnate. What a sad commentary on the cluelessness of the masses.

Fostering and encouraging fundamentally important innovations is exactly what the patent system is supposed to be doing. Crying, complaining or whining when it happens is ridiculous and practically un-American. Patents are grounded in our Constitution and were championed by none other than President George Washington, President James Madison and President Abraham Lincoln. See Celebrating Presidents. As a rule of thumb when folks challenge the believes of these most esteemed leaders I am immediately suspect, particularly when they seek to interject moral or intellectual superiority into the discussion. They would actually have you believe that their anti-patent sentiments are enlightened and far more intelligent. So does that mean Washington, Madison and Lincoln were mental midgets that didn’t understand basic concepts of government and commerce? Ridiculous.

As with so many things in life, the problem is with the bad actors. The trouble is that it is difficult to identify exactly who those bad actors really are in many cases. This is partly because of clever abuse of the system, but mainly because defendants when sued for millions of dollars greatly prefer opting for an extortion-like settlement of $25,000 to $50,000 when it is offered. Increasingly this type of extortion-like behavior is being recognized by the district courts and the Federal Circuit, but the system is not set up to suppose there will be bad actors manipulating the litigation process in a shake-down that would make Al Capone blush.

For more on patent litigation abuse please see: Chief Judge Rader Speaks Out About Patent Litigation Abuse and IBM Chief Patent Counsel on Patent Litigation Reform.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of Read more.

Discuss this

There are currently 15 Comments comments.

  1. Brian Smith April 10, 2013 8:26 am

    Interesting article, particularly your discussion of contingent fee litigation by attorneys such as Ray Niro. I would be interested in seeing an analysis of the growth or demise of contingent fee patent litigation since KSR. I suspect it is the latter.

  2. Anon April 10, 2013 10:46 am

    Very nice article. Can you provide a link to the raw data?

  3. Mark Nowotarski April 10, 2013 4:13 pm

    As with so many things in life, the problem is with the bad actors.


    Perhaps the efficiency of the pretrial court proceedings is improving and parties with patent disputes are finding pretrial proceedings an increasingly effective way to resolve their disputes.

  4. Rob April 10, 2013 5:06 pm

    It would be interesting to see chart 1, Patent Cases Commenced, normalized to number of enforceable patents (probably difficult to calculate), or at least a running 10 year average of issued patents. I’d think that has a bigger effect than you suggest.

  5. Gene Quinn April 10, 2013 6:02 pm


    I wish that were the case, but from what I hear the pretrial patent process isn’t one that is one that is likely to contribute to settlement or resolution. There is no standardization. Claim construction can occur at any point (i.e., early, late or even in a jury instruction). Judges don’t want to hear summary judgment motions. Some courts drag cases out over many years, and in one court seem to do it as a way of stimulating the local economy.

    There are a few courts that are serious about getting to a resolution and facilitating that resolution. It is a real mixed bag though.


  6. Gene Quinn April 10, 2013 6:04 pm


    There really is no link to the raw data. So much of the data from this article is now only within my Excel spreadsheet. You can get the data from the Office of Administrative Courts online going back to 1997. I’ve been reluctant to share the spreadsheet. Perhaps I’m being too protective.


  7. Gene Quinn April 10, 2013 6:06 pm


    I think contingent fee patent litigation is on the rise. For much of history there really was no contingent fee option, or at least very few. Now there are more who are at least willing to consider it as a model for representation. I do think it means that there needs to be far more due diligence than before, at least if you are serious in taking only good cases likely to yield large awards. I don’t know whether contingent fee representation goes on in the extortion market.


  8. Dan Dawes April 10, 2013 9:13 pm

    I litigated against Ray Niro decades ago against what I thought as a frivilous but acidic defense of a trade secret suit, eventuallly settled to the plaintiff’s favor. Kind words that you use here to characterize such suits and litigators.

  9. JM April 17, 2013 3:02 pm

    I’d like to see the data normalized to patents-in-force. i.e. # of trials/# of enforceable patents at the time. I suppose as the number of patents issued each year has nearly tripled in last 30 years while number of trials seems to have not gone up too much, the # of trials/# of enforeable patents has gone down. And when one considers that # of enforceable patents is cummulative number of the last 20 years, the number of enforceable a patents in 1980 was way less than in 2010 because of this compounding effect would make the number drop precipitously. The interesting thing would be to compare the pre-trial numbers (settling). But since the number of cumulative patents–in-force in any year would have gone up precipitously in the last 30 years, I am not surprised at all that the numbers for the pre-trial actions have also gone up. So if one were to normalize to enforceable patents, I would expect to see nearly a straight line in number of case commenced vs. enforceable patents.

  10. Anon April 20, 2013 9:55 am


    You make a good point that I and others have observed before. The denominator of the pool of patents-in-force must be kept in mind. Not doing so is tantamount to taking a fact out of context – it quite loses its meaning.

    Even if the curve was not flat (and keep in mind that roughly half of granted patents are not kept in force for their statutorily granted 20 year period), there is undoubtedly a very strong countervailing effect that paints a very different picture ot the *real* incidence of what amounts to purely enforcing a right. Keep in mind as well some of the articles presented after this one – there are clearly other factors in the mix.

    But those that would beat the drumbeat that “patents are evil” will only look at the total amount of patents separately, and not look at any type of facts in context.

  11. Anon April 20, 2013 12:09 pm

    Posts 2 and 6 raise an interesting and subtle point.

    I do not begrudge Gene his holding onto the sweat of his brow. While data as data is not protectable (and rightly so as a fact is a fact), the reticence with sharing this compilation of pure fact indicates an innate feeling of protecting something that Gene feels he ‘owns.” At the same time, this holding back stymies the progress of the analysis (and of the ‘greater good’ as that term can be thrown about)!

    For example, it would be illuminating to slice and dice the data to see the spectrum of age of patent when asserted (and age of ownership of the asserting party). If patent assertions largely happen prior to any maintenance fee being do (or soon after new ownership happens), then the comment after the flat line curve immediately above is even stronger.

    If patent assertions largely happen after a long time (the market is allowed or even promoted to be developed, and then the patent right asserted, those asserting some type of equitable theory of ‘hold-up” would have some ground (some – mind you, not complete, as the fact that ALL patents are indeed published does diminish the ‘hold-up’ theory to a very large degree).

    Either way, the illumination would help put the facts into context.

  12. Gene Quinn April 20, 2013 1:46 pm


    You say: “it would be illuminating to slice and dice the data to see the spectrum of age of patent when asserted (and age of ownership of the asserting party). If patent assertions largely happen prior to any maintenance fee being do (or soon after new ownership happens), then the comment after the flat line curve immediately above is even stronger.”

    I don’t have that data. I just have raw numbers on termination of cases. I think the type of information you are looking for is available through the Lex Machina database.


  13. Anon April 20, 2013 4:04 pm

    Well, there goes my attempt to goad you into releasing a detailed database…

  14. MikeIP May 8, 2013 3:54 pm


    Seems like you’re overreaching a little bit. It’s not that patents bought up by Acacia, et al. are widely infringed; it’s that they’re allegedly infringed. That is a huge, and meaningful, difference.

    Notwithstanding that, the problem isn’t even that as much as it is that the courts continue to let plaintiffs (including trolls and product-producing companies) allege infringement without any particularity. They can just throw anything out there and see what sticks. Meanwhile, actual companies spend a lot of time and money to determine if there is any validity to the plaintiffs’ claims, and have to fight them off if not true. Or settle early, even if the allegations are manure, to avoid the cost of litigation. THAT is the biggest problem in the patent world right now.


  15. Gene Quinn May 8, 2013 11:13 pm


    The problem I have with what you say is that at least some companies, perhaps many, don’t spend any time considering whether a patent is valid and infringed unless they are sued. They gleefully tell people that they won’t even look at a patent unless they are sued. So when they get sued how is that at all shocking?

    I understand what you are saying. There is quite a lot of blame to go around here though. The folks that are the real victims are the smaller companies that are being asked to pay extortion.

    If a big company won’t investigate whether they need a license, get sued and then decide to settle for an extortion payment that is on them and evidence of a really bad business model if you ask me. There is a way to fight these trolls, but companies don’t want to employ available avenues. Sad really. Instead they paint a target on themselves that says “sue me and I’ll cave with a payment so you get a windfall for very little work.” That, of course, only guarantees they will be sued more.