By Andrew Williams —

As
we have previously reported, the patent system is under attack, and has been
for quite some time.  Generally, these
attacks either begin with the assumption that the patent system is "broken,"
or that conclusion is reached after a review of anecdotal accounts of alleged
patent abuses.  Rarely are these attacks
supported by any actual numbers, and there has been a complete dearth of
scientific or statistically based studies to support them.  Perhaps not coincidently, when passing the America
Invents Act ("the AIA"), Congress attempted to rectify this situation
by tasking the GAO (Governmental Accountability Office) to conduct a study of
the consequences of litigation by non-practicing entities or patent monetization
entities ("PMEs") (referred to more derogatorily in the mainstream
press as "Patent Trolls").  The
resulting report, entitled "Intellectual Property: Assessing Factors that
Affect Patent Infringement Litigation Could Help Improve Patent Quality" ("GAO Report"), was sent to the congressional committees on August 22,
2013.  The Report itself contains some
observations regarding the increase in patent litigation, some possible
suggestions explaining these observations, and one recommendation:

We are recommending that the
Secretary of Commerce direct the Director of PTO to consider examining trends
in patent infringement litigation, including the types of patents and issues in
dispute, and to consider linking this information to internal data on patent
examination to improve the quality of issued patents and the patent examination
process.

GAO
Report, p. 46.  Even though this was an
ambitious report, the GAO was upfront with the limitations of its research.  Indeed, the Report noted that the Comptroller
General sent a letter to the chairs and ranking members of these congressional
committees before the passage of the AIA, informing them that reliable
data was either not already available or could not be obtained.  See id.,
p. 4 n.10.  Nevertheless, far from
concluding that the patent system was "broken," the conclusions
actually reached by the GAO suggest that even though there may have recently
been an increase in low-quality patents, particularly related to software, it
is not a cause for alarm.  In fact, the
GAO noted trends in both the federal courts and the Patent Office that are already
seeking to correct these perceived problems.

As
background on the Report, section 34 of the AIA charges the Comptroller General
to conduct a study that should include the following information:

(1)    The
annual volume of litigation described in subsection (a) over the 20-year period
ending on the date of the enactment of this act.

(2)    The volume
of cases comprising such litigation that are found to be without merit after
judicial review.

(3)    The impacts
of such litigation on the time required to resolve patent claims.

(4)    The
estimated costs, including the estimated cost of defense, associated with such
ligation for patent holders, patent licensors, patent licensees, and inventors,
and for users of alternate or competing innovations.

(5)    The economic
impact of such litigation on the economy of the United States, including the
impact on inventors, job creation, employers, employees, and consumers.

(6)    The benefit to commerce, if any,
supplied by non-practicing entities or patent assertion entities that prosecute
such litigation.

AIA,
§ 34(b).  Because of the aforementioned
concerns regarding the existence (or lack thereof) of reliable data, the GAO
reinterpreted the objectives of its study to be:

(1)    What
is known about the volume and characteristics of recent patent litigation
activity;

(2)    the views of
stakeholders knowledgeable in patent litigation on what is known about the key
factors that have contributed to recent patent litigation;

(3)    what
developments in the judicial system may affect patent litigation; and

(4)    what actions, if any, has PTO recently
taken that may affect patent litigation in the future.

GAO
Report, p. 4.  This deviation is likely
to draw criticisms that the GAO did not actually conduct the study they were
tasked to perform.  However, in response
to the GAO's previously noted concerns, Senator Leahy stated on the record that
any resulting report should include any limitations on the data and methodology
used.  See id., p. 4, n.10.  The GAO
took this opening to develop its own objectives for the Report, which it
believed were consistent with these noted limitations.  Id.

The
data that the GAO used to assess recent patent litigation was obtained from Lex
Machina, a firm that collects such data.  The Report indicated that Lex Machina used all data for patent infringement
lawsuits filed between 2000 and 2011, and also selected a random, generalizable
sample of 500 lawsuits — 100 per year from 2007 to 2011.  This sample size allowed the GAO to make
conclusions regarding each of these years with a margin of error of ± 10
percentage points for any particular year, but ± 5 percentage points for all of
the years.  The GAO also used data
obtained from speaking with 44 stakeholders, which included 10 representatives
from operating companies who had been sued in recent years (including
representatives from software, computer hardware, retailers, and pharmaceutical
industries); 8 representatives from PMEs that had regularly sued others; 14
legal commentators, economists, and consultants; representatives from 2
universities, 2 patent brokers, 4 VCs, and 4 individual inventors.  The GAO clearly attempted to solicit the
opinions of a representative cross-section of stakeholders.  Nevertheless, any results stemming from these
interviews must be viewed with caution because of the size of the sample was
necessarily small, and any data obtained is inherently limited by the biases of
the particular stakeholders that were consulted.

Perhaps
the most interesting results, and likely the most reliable, came from the GAO's
analysis of the Lex Machina data.  The
GAO found that patent lawsuits fluctuated slightly between 2000 and 2010, but
in 2011 there was a 31% increase.  Contrary to the conventional wisdom, however, the GAO found that it was
operating companies, not PMEs, that brought the majority of patent infringement
lawsuits in the 2007 and 2011 timeframe.  See GAO Report, p. 17.  In fact, in that timeframe, PMEs and likely
PMEs were found to have only brought 19 percent the studied lawsuits.  This number does appear to be increasing, with
PMEs being found to be responsible for 24 percent of the lawsuits in 2011, but the Report did note that this increase was not statistically significant.  Perhaps the common perception regarding PMEs
stems from the fact that they tended to sue more defendants per suit than
operating companies.  For example,
between 2007 and 2011, operating companies sued on average 1.9 defendants per
suit, whereas for PMEs, the number was closer to 4.1 defendants on average.  In fact, the GAO found that PMEs in this timeframe
had sued close to 1/3 of all defendants.  The GAO did attribute the increase in patent litigation to the type of
patents, and not the entities brining suit.  In the 2007 to 2011 timeframe, 46% of all lawsuits involved
software-related patents, with 64% of all defendants facing such suits.  Unfortunately, the GAO was not able to
independently determine a cost for all of this litigation, either to the
parties directly or to the industries involved.  Moreover, the Report noted that it was limited to cases that had been
litigated, and therefore they were unable to determine the cost of patent
assertion that occurred outside of the court system.

As
for the remainder of the Report, even though the results of the stakeholder
interviews should be viewed with caution, the observations and conclusions are informative.  There were three key factors identified that
have likely contributed to the increase in recent patent infringement lawsuits:

(1)    unclear
and overly broad patents;

(2)    the
potential for disproportionately large damage awards; and

(3)    the
increasing recognition that patents are a valuable asset.

GAO
Report, p. 28.  The first factor relates
to the alleged prevalence of low-quality patents.  This view was predominately related to
software-related patents.  The Report
identified several reasons why stakeholders believed that these software patents
were overly broad.  First, the lack of
clear terminology in the computer software industry has resulted in the use of
unclear terminology in software patents.  Second, the use of functional language in such patents has allowed the
patent owners in these industries to claim that their patents not only cover the
small improvement described, but claim that they cover entire technologies or potential
future technologies.  Third, even though
patent infringement is strict liability (being unaware of a patent is not a
defense to infringement), the presence of such broad patents results in more infringers
that had no intent to so infringe.  Relatedly, some stakeholders pointed out that the sheer number of
patents makes it difficult to search for those that might be relevant to a
particular technology they are developing.  Also, even if the relevant patents are identified, it can be difficult
to identify the owners, because the Patent Office does not currently require
notification of changes in ownership.  Interestingly, even though some of the stakeholders interviewed blamed
PMEs for the rise in patent infringement litigation, others did note that it
was likely the prevalence of low quality patents that played a bigger factor.

The
GAO Report did identify several trends that may have a positive impact on the
identified increase in patent litigation.  First, the Report noted that the federal court system is implementing
new initiatives to handle patent cases.  For example, in January 2011, Congress established a pilot program in
certain districts to encourage expertise among district court judges.  So far, 14 federal districts have been
designated to participate in this 10-year pilot program.  In addition, in September 2011, the Advisory
Council for the Federal Circuit issued a model order to address e-discovery
issues targeted to patent cases.  It is
too early to tell, however, what impact these e-discovery rules will have.  Finally, the case law is evolving, and as a
result could address some of these problems.  The Report highlighted recent decisions about what constitutes
patentable subject matter, or what is required to satisfy the obviousness and
definiteness requirements.  The Report
noted that such decision could help combat the identified overly-broad and
ill-defined patents.

The Report also noted that the Patent Office has taken steps to improve patent
quality.  For example, in February 2011,
the Patent Office issued supplemental guidelines related to the definiteness
requirement.  These guidelines
specifically addressed the examination of claims with functional language.  Also, in November 2011, the Patent Office
began working with the software industry to address the issue of non-uniform
terminology in software related patents.  In addition, the Office launched a new patent classification
system in January 2013 called the Cooperative Patent Classification (CPC).  Finally, the Report noted that the Patent
Office has been working to solve the issue of patent ownership transparency.  Of course, all of these initiatives are in
addition to the Patent Office's implementation of the post-grant review
proceedings that are mandated by the AIA.

As
indicated at the outset, the only recommendation included in the Report was
directed to the Patent Office.  Before
the Report was sent to the congressional committees, the GAO sent a copy to the
Patent Office to review.  Appendix II of
the Report is a letter from Acting Under Secretary and Acting Director Teresa
Stanek Rea to the GAO that commends them for their efforts, and concurs with
the recommendation.  Specifically, the Patent
Office's response to the recommendation was:

The USPTO appreciates GAO's recommendation.  The USPTO currently uses information relating to cases involved in
patent litigation, and agrees that it would be appropriate to consider making
better use of such information by examining trends in patent infringement
litigation.  The USPTO also agrees that
as part of its ongoing effort to improve the quality of issued patents and the
patent examination process, it would be appropriate to consider linking trends
in patent litigation to internal data on patent examination.

GAO
Report, App. II.  Perhaps this
recommendation, along with all of the identified initiatives, will help improve
the quality of software patents, and as a result help to restore some faith in
the U.S. patent system.