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Patent Litigation Down, Patent Prosecution Up - Time to Nail Down your IP Strategy

by: Tom Hochstatter, President

Patent Litigation Downward Trends Will Continue in 2019

Based upon activity up and through Q3 2019, it looks like another down year for patent litigation - both district court and PTAB proceedings.

source: Unified Patents

source: Unified Patents

So here are some questions our IP Advisory have set out to answer in Q4:
1) Is this downward trend the "new/new"? Why or why not?
2) Are cases settling on the "courthouse steps” or much sooner now at a business discussion level well before a suit need be threatened?
3) Are licensors (aka plaintiffs) more rational with their asks?
4) Are patent holders holding back - for good or for some time until there's positive movement in the market?
5) Are foreign litigation filings up? Where and why?
6) Most importantly, what is your firm doing with its idle IP litigation horsepower?

We'd love to hear from you at

Issued Patents Are Up Though

The USPTO just closed its FY 2019 (Sept. 30th) and they issued 336,886 utility patents - an increase over last year (306,912) and FY2017 (315,367). Dennis Crouch of created the attached graphic with an overlay by USPTO Director overlay (very clever). He has some compelling insights with regards to each Director's tenure correlating to issue rates.



So on the surface it appears the prosecution folks are flat out right now working on developing new patent applications and working through existing applications. Our own business reflected this energy; we actually conducted a record number of Patentability reports for clients in Q3 2019.

One special feature of working with Techson is we have automated Patentability reports to give inventors and prosecution folks a quick look before endeavoring on full prosecution. Take a look at some samples here. These reports are $99.00 and are credited toward a full Patentability study if you engage us.

Litigation Financing

We are also reconciling this negative spiral in patent litigation with the apparent tidal wave of new litigation financing capital that is rushing into the space. A new entrant from Jules Kroll & colleagues was announced on Oct. 7th. And we saw Burford announce another $1.6 Billion Fund late last year among many others raising new rounds to bolster existing capital troves.

What do these financiers know that us practicing IP professionals don't know...yet?

Portfolio Strategy

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So while we set out to answer many of these questions confronting our US patent industry here at the tail end of 2019 we'd like to encourage you to consider how you are also addressing both these specific trends in the industry, but more importantly how are you more fully addressing your clients’ complete portfolio needs - across their entire Innovation Supply Chain?

We have the team and the expertise to help your clients maximize their IP ROI across the Innovation Supply Chain. This approach is unique in that we embrace outside counsel (not compete) to insure clients receives the best market insights AND legal insights (while maintaining privilege).

Q4 is a great time ahead of your 2020 Planning & Budgeting cycles to conduct our onsite, fixed-fee IP Audit - it's a half day session that delivers an actionable list of outcomes with measurable returns.