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* * AIPLA Firm Logo * * AIPLA Firm Logo American Intellectual Property Law Association Non-Practicing Entities Litigation Trends and Solutions Kimberly N. Van Voorhis AIPLA-LESJ Meeting Tokyo, Japan April 8, 2013 NPE Lawsuit Statistics 2011 NPEs brought 45% of 2011 patent litigations 63% of 2011 patent litigation defendants were defendants to NPE suits Source: RPX Corporation Litigation Database Pacer NPE Lawsuit Statistics 2012 NPEs brought 62% of 2012 patent litigations 94% by corporate NPEs 5% by individual inventors 1% by universities 59% of 2012 patent litigation defendants were defendants to NPE suits Source: RPX Corporation Litigation Database Pacer NPE Lawsuit Statistics In 2012, NPEs sued more non-tech companies than tech companies. Retailers are among hardest hit. 55% unique NPE defendants make $10M or less 66% unique NPE defendants make $100M or less Source: Chien, Colleen V., Patent Trolls by the Numbers (March 13, 2013). Available at SSRN: /abstract=2233041 NPE suits in the ITC Source: Facts and Trends Regarding USITC Section 337 Investigations, prepared by the USITC, 6/18/2012 Increased ITC Litigation Domestic industry requirement can be met by licensing activity NPEs do not have to show irreparable injury and inadequate damages under eBay Not limited by the new AIA provision restricting joinder Rare for ITC to grant a motion to stay pending a PTO reexamination Increased ITC Litigation Interdigital Communications, LLC, v. ITC, _F.3d_ (Fed. Cir. 2013)(on panel reh’g) (2012) Federal Circuit confirmed that a domestic industry can consist of purely licensing activities as a “substantial investment in [the patent’s] exploitation.” No need for domestic manufacture. InterDigital met this requirement because it (1) invested around $7.6 million on employees engaged in licensing and (2) received almost $1 billion in licensing revenue. Litigation Limits Permanent injunctions limited