The Role of Patents 

• Property Rights: Patent Rights vs. Property: The Framers’ Understanding of Patents

  • ​Former U.S. Solicitor General Paul Clement explores what the framers of the Constitution had in mind when they included patent law in the founding of the country. While there has been a recent movement to categorize patents among natural law or common law property rights, Clement argues that patents are government-created privileges or franchises to serve the public interest. 

 

Inter Partes Review (IPR)

• USPTO PTAB Statistics

  • ​View monthly performance benchmarks of the PTAB, including dispositions, pendency, inventory, and other tracking measures. (From HTIA website)

• Patent Quality Initiative Statistics - Dispelling PTAB Myths

  • ​IPR impacts a tiny fraction of patents and is used by US companies almost two-thirds of the time. 

• Inter Partes Review: Five Years, Over $2 Billion Saved

  • ​Based on the 2017 AIPLA Economic Survey, one estimate finds that IPR has saved litigants at least $2.3 billion in legal fees. 

 

Alice & Section 101

• Q4 2019 PItchbook-NVCA Venture Monitor

  • ​Last year, VC deal counts and values continued their charge into record territory, rivaling a historic record in 2018. Annual deal growth for software startups have grown 6x over the last decade proving that innovation in the tech sector is thriving under Alice. 

• Decoding Patentable Subject Matter, Patently-O Patent Law Journal 1, 2018

  • ​A 2018 academic study of USPTO patent data found that overall 101 rejections rates under Alice have risen only modestly (under 15%), and outside of business method patents, the footprint of 101 case law has been marginal. 

• Statement of David Jones, HTIA Executive Director, Before the Subcommittee on Intellectual Property United States Senate Committee on the Judiciary

  • ​Written testimony from HTIA Executive Director David Jones on “The State of Patent Eligibility in America” from June 5, 2019 hearing. 

• Do Weaker Patents Induce Greater Research Investments?

  • A Northwestern study found that innovation in certain sectors has increased after the Alice decision. Specifically, firms affected by Alice decreased their patenting activity but increased R&D expenditure.

 

Patent Quality

• How to fix the patent quality crisis

  • ​HTIA Executive Director David Jones argues that we need to address the patent quality issue head on, by giving patent examiners more time and better tools, ensuring the cost of examination needs are paid out of patent application fees, and strengthening IPR. 

• Where’s the Innovation: An Analysis of the Quantities and Qualities of Anticipated and Obvious Patents

  • ​A 2013 academic study estimates that 28% of all patents are partially or entirely invalid and even higher for patents on software and business methods. That means around 1 million invalid patents are currently in force, with another 100,000 invalid patents issued each year. 

• Irrational Ignorance at the Patent Office

  • ​According to this 2019 study, on average the PTO spends about 18 hours examining each patent application. The authors found this results in more invalid patents being granted in the U.S., while Europe and countries like Japan denied patents for the same invention.

• Decreasing the Patent Office’s Incentives to Grant Invalid Patents

  • ​Frakes and Wasserman build upon new empirical evidence to propose three changes to the patent system that would reduce the issuance of invalid patents: (1) restructuring PTO fees; (2) limiting repeat applications where applicants can file for the same invention; and (3) increasing the time examiners spend reviewing patent applications.

• Continuing Patent Applications and Performance of the U.S. Patent and Trademark Office as of Fiscal Year 2018

  • ​The USPTO is unique in permitting applicants to refile their patent applications to take another turn at examination, resulting in a stockpile of additional rework for examiners. This study suggests doing away with refiled continuing applications to improve the examination backlog and redirect resources for more thorough examination of new patent applications. 

 

Infringement & Litigation

• Patent Trolls: Evidence from Targeted Firms

  • ​Harvard Business School study examines the rise of patent lawsuits brought by non-practicing entities (NPEs) and finds clear evidence patent trolls harm innovation through their opportunistic behavior in targeting vulnerable companies with frivolous lawsuits.

• The effect of patent litigation and patent assertion entities on entrepreneurial activity

  • ​Empirical analysis of the statistical relationship between patent litigation and venture capital investment in the U.S. The paper finds there is a tipping point when increases in the number of patents litigated are associated with decreased VC investment. Litigation by frequent patent litigators is also associated with decreased VC investment. 

• The Private and Social Costs of Patent Trolls

  • ​A Boston University study analyzed stock market data to find that NPE lawsuits are associated with half a trillion dollars of lost wealth to defendants, many of which are technology companies who invest heavily in R&D, resulting in reduced innovation incentives and a net loss of social welfare. 

• 2021 Unified Annual Patent Dispute Report

  • ​2021 saw a continued increase in patent litigation by non-practicing entities ("NPEs"), and two districts accounted for 37% of all patent litigation.

• RPX: Q4 in Review: NPEs Maintain Filing Streak as Operating Company Litigation Plateaus

  • 2021 saw 46% more lawsuits brought by non-practicing entities ("NPEs") than in 2018.
     

Other Resources

• Transactions & Licensing: The market for software innovation through the lens of patent licenses and sales

  • An analysis of transactional patent data (patent licenses and transfers) which finds the software patent marketplace remarkably robust, with the number of software patents sold growing over 50% from 2012 to 2015. 

• Injunctions: Patent Policy and American Innovation after eBay: An Empirical Examination

  • In the wake of the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, LLC, this paper found no evidence that changes to injunction relief have harmed the American innovation system.