The America Invents Act (AIA) mandated that the U.S. Government Accountability Office (GAO) conduct a study on the consequences of patent litigation brought by non-practicing entities (NPEs); GAO has concluded that research and recently issued its report titled “Intellectual Property: Assessing Factors that Affect Patent Infringement Litigation Could Help Improve Patent Quality.” According to GAO, while public discussion focuses on the increasing role of NPEs in patent infringement litigation, NPE lawsuits account for just one-fifth of these cases.
In GAO’s view, “regardless of the type of litigant, lawsuits involving software-related patents accounted for about 89 percent of the increase in defendants between 2007 and 2011, and most of the suits brought by PMEs [patent monetization entities] involved software-related patents. This suggests that the focus on the identity of the litigant—rather than the type of patent—may be misplaced.” Stakeholders evidently identified three factors likely contributing to many of the recent lawsuits: a prevalence of patents with unclear property rights, i.e., software-related patents often have overly broad or unclear claims or both; large awards from the courts, even where the patents at issue made only small contributions to a product, provide incentives for patent owners to file infringement suits; and companies recognize that patents are a more valuable asset than once assumed. GAO notes that AIA reforms implemented through the judicial system could address some of these issues, but that it may be too soon to determine what effect they will ultimately have on patent litigation.
GAO concludes that an examination of the types of patents and issues in dispute may provide an opportunity to “improve the quality of issued patents and the patent examination process,” if the U.S. Patent and Trademark Office would link such trends to internal data on patent examination. A 2003 National Academies report apparently indicated that this type of analysis “could be used to improve patent quality and examination by exposing patterns in the examination of patents that end up in court.”