One of the stories we provide to you this week entitled Piracy Lawsuits Dominated by Just Three Movie Companies discusses an interesting article based upon a broad-based study of the more than 190,000 individual copyright, patent and trademark cases filed in United States District Courts from 1994 to 2014. The cited article, entitled IP LITIGATION IN UNITED STATES DISTRICT COURTS: 1994 TO 2014, was published by Matthew Sag, Professor of Law at Loyola University of Chicago. (Click HERE). Unlike most empirical studies of litigation that focus on cases in which a written opinion was generated, this study recognizes that most civil cases settle or are otherwise terminated without a written opinion. As stated by the author, " if we truly want to understand IP litigation we need to examine the proverbial 'haystack' of infringement actions that are actually filed, in addition to the proverbial 'needles' of well-reasoned appellate or even district court opinions." The data was gleaned from the records of federal litigation maintained by the Public Access and Records Management Division of the Administrative Office of the U.S. Courts, available on the PACER website.
What the data shows is that just looking at the number of lawsuits filed to conclude that there has been an 'explosion' of copyright and patent litigation in recent years can be misleading. In the copyright arena, for example, although there can be no doubt that file sharing has been a widespread problem for the film, television, music and software industries, the pornography producer, Malibu Media, was the plaintiff in over 41.5% of all copyright suits nationwide in 2014. "To the extent that the rate of copyright litigation has increased over the last two decades, that increase appears to be entirely attributable to lawsuits against anonymous Internet file sharers," the author concludes.
Likewise, "the apparent patent litigation explosion between 2010 and 2012 is something of a mirage." The author opines that there has been a sustained "patent litigation inflation" and that this 'inflation' was mistaken for a sudden explosion because of permissive joinder. Prior to the America Invents Act (AIA) it was common practice, especially in the Eastern District of Texas, for plaintiffs in patent litigation to join multiple unrelated defendants in a single lawsuit based on a commonly-asserted patent or patents. The AIA ended this and resulted in a nominal explosion of patent infringement lawsuits. In 2010, the average estimated defendants per patent lawsuit in the Eastern District of Texas was 12.37, compared to an average of 3.38 in the rest of the nation. The Eastern District of Texas allowed joinder based on purportedly overlapping questions of law and similarities between accused products belonging to multiple defendants. In 2011 Congress responded to the abuse of joinder and amended the Patent Act to make joinder more difficult. If the defendants could not be joined in one lawsuit, then separate lawsuits had to be filed against them. The work of Professors Cotropia, Kesan & Schwartz undertook a painstaking review of the entity status of every patent plaintiff for every case filed in 2010 and 2012. They report that the number of unique patentees barely changed between 2010 and 2012 (1588 to 1667), whereas the number of individual cases filed nearly doubled.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
