Michelle Mao is an incoming 2L JD student at Osgoode Hall Law school and an IPilogue Writer.

Litigation is almost always , whether because of the sheer amount of time needed to get a court date, the expensive costs for the client and law firm, or the risks associated with receiving an unfavorable judgement. So why do entities  (NPEs) act as the exception to the rule? Furthermore, how is litigation a viable option for them to make a profit when litigation seems burdensome for most other types of entities? 

are a special type of entity that specifically purchases patents or patent rights but does not commodify the patent. There are typically academic institutions and private individuals/companies. The first kind, academic institutions, acquire patents to protect the research work of their faculty and researchers while licensing others to use the results of the research produced without commodifying the patent. The second kind, private parties, often use the patents they acquire for profit through damage or settlement awards, or royalties and licensing rights.

NPEs who acquire patents solely for profit (and not commercialization) are also called or ".” They from collecting royalties, licensing transfer patent rights, or resorting to court proceedings to enforce patent rights against infringers. They do not practice, develop, manufacture, or otherwise commercialize the patent. Furthermore, because they do not practice or develop their manufacture, they experience no risk of patent infringement litigation themselves.��

From this description alone, it seems that an NPE’s core business model infringes on the where innovation is simultaneously protected and encouraged. So why are they still allowed to operate?

Despite the obvious tension between the business models of NPEs and IP law, NPEs can exist for the following two reasons. First, it is legal to profit from acquiring patents. Second, NPEs have a functional role in the corporate world— an inventory for .��

Due to the ongoing problem of strategic patent litigation, technology companies have now begun to even at times utilizing the actions of NPEs to evaluate the strength or profitability of their patents should they choose to develop them. For example, a patent that is rejected by an NPE for purchase may implicitly tell companies that their patent is not strong or not seen to be in line with market trends. This, however, can still permanently shift and alter the values in which patents are developed. Previously, patents were developed due to a new technological innovation or to address a technological need. While profit was still a factor for developers when registering their patents, decisions around profitability were made by technology companies and experts. With the rising market influence of NPEs, the voices of technology companies and experts have diminished. Their unique market expertise and knowledge of consumer demand may be pushed aside in favour of “evaluations” by NPEs, based solely on their self-interested criteria of how profitable a patent is, based on their typical avenues of income: royalties, licensing, and litigation.��

With huge technological strides being made in the tech sector in the present day, the conflict between NPE patent trolls and developers will become increasingly contentious. Moving forward, Canadian government authorities should consider becoming involved in balancing the tensions between NPE patent trolls and technological innovation. Public institutions have a direct interest in fostering technological development and innovation for the betterment of communities and the national economy. Currently, aggressive NPEs who increase the time and difficulty of obtaining a patent solely due to profit are a direct obstacle to that interest.��

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"Labrador fully supports efforts to assess and ultimately end this pandemic and hopes that more tests will be created, disseminated, and used to quickly and effectively protect our communities through its offer of a royalty-free license during the current crisis."

While Fortress’ royalty-free licenses to support COVID-19 tests can be considered as a step in the right direction, it is also worth noting that Fortress was by Apple and Intel last November for allegedly stockpiling patents for the sole purpose of litigation. In other words, Fortress’s actions in the past have resembled the actions of a “patent troll”. Fortress of the patents in question from Theranos, a blood-testing start-up that . The patents were used to secure the loan that Fortress made to Theranos and were taken upon default.

The United States Congress has repeatedly tried to pass legislation to target patent trolls. One of its failed attempts prompted Senator Patrick Leahy, the Chairman of the Senate Judiciary Committee at the time, to that the proposed legislation was to be withdrawn due to a failure to “combat the scourge of patent trolls on [the] economy without burdening the companies and universities who rely on the patent system every day”. However, in 2017, the U.S. Supreme Court that patent suits can only be filed in courts of the jurisdiction where the targeted company is incorporated. In Canada, the federal government proposed a number of to the as part of the . One of the main changes was meant to discourage bad faith allegations of patent infringement, including misuses arising from patent trolling. It involves implementing minimum requirements and standards (such as basic information that better enable recipients to evaluate the merits of the claim) for patent demand letters.

Apart from patent trolls, intellectual property rights, namely patents, are undoubtedly a key driver of pharmaceutical research and development, but the current pandemic has highlighted concerns surrounding the difficulties of balancing monopoly rights and access to medicines. One can take this opportunity to reflect on the other implications of the exclusivity afforded by intellectual property rights and how to address the urgent need for open access to research and developments to fight a pandemic.

Written by Felice Yeung, a second year JD Candidate at Osgoode Hall Law School. Felice is also a Clinic Fellow at the Osgoode Innovation Clinic.

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Although the issue is serious, it is not a hopeless one. Recent developments in both the United States and Canada offer some hope for companies on how to defeat patent trolls .

This past Spring, the US Supreme Court  certioari for Personal Audio v. Electronic Frontier Foundation, giving the Electronic Frontier Foundation (EFF) a firm win against patent trolls. The issue arose in 2013 when Personal Audio LLC sent letters to several podcasters and companies to force them into a licensing deal or face a patent infringement . Personal Audio held a for “a system for disseminating media content representing episodes in a serialized sequence” and claimed that this covered all forms of . Amongst the targeted podcasters was comedian , who was sued by the company for patent infringement and raised half a million dollars in a crowd-funded campaign to fight back. Although Carolla later settled, the issue was far from over.

In 2013 the Electronic Frontier Foundation (EFF) challenged Personal Audio’s patent with an “inter partes review”. Amongst their of contention, the EFF argued that the patent had a priority date of 1996, however, systems for delivering episodic content already existed on the internet well before this time. They gave examples like CNN’s “Internet Newsroom” and the Canadian Broadcasting Corporation’s show “Quirks & Quarks”, which operated on platforms that enabled episodic content but originated before the priority date. EFF was reportedly successful in their challenge and the US Patent and Trademark Office invalidated the patent. This decision was later in the US Court of Appeal and the Supreme Court denied certioari.�� With EFF's firm victory over Personal Audio, this case will surely influence future cases regarding patent trolls.

Meanwhile, in April 2018, Canada announced its national IP strategy, which included amendments to key IP  to combat patent trolls. Amongst the amendments is a new requirement for patent to include minimum standards of information, such as details on the specific patent being infringed and how it is infringed. This requirement is aimed at reducing vague or deceptive demand letters that are often used by patent trolls. Government officials also said the proposed amendments will give Canadian companies that are targeted by patent trolls the home court advantage in litigation, with any infringement claims made against Canadians restricted to Canadian courts.

Taken together, it seems that the opposition against patent trolls has made some headway, however, we will have to wait to see the lasting effects of these events.

Imtiaz Karamat is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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In light of the quote above, the thought of demonic robot trolls may scare people into not reading the rest of this article as “ignorance is bliss”. However, it is not the fantastical, cave-dwelling version of a troll that this article sets out to discuss, but rather it is the familiar, to some “cave-dwelling”, non-practicing entity (NPE) that the patent community has come to know as a patent troll.

Although this introduction of NPEs may seem harsh, and I do not mean to offend anyone by it, NPEs have become such a frustration to other companies that the title has stuck. In fact, a study has shown that about two-thirds of all patent lawsuits in 2015 were filed by NPEs.[1] Furthermore, NPEs have become such a burden for businesses, the Supreme Court of the United States was inclined to step in and attempt to reduce the strength of NPEs.[2]

However, I would suggest that the issues surrounding NPEs and the magnitude of their burden may only be at an infant stage. When one considers the potential of artificial intelligence (AI) and the role it might play as an inventor, one may begin to realize why future NPEs could be far more obstructive than current ones.

For example, we can consider “Chef” IBM Watson to help us understand why we could be staring in the face of an NPE crisis. In 2014, IBM researchers teamed up with the Institute of Culinary Education in New 91��ɫ to use AI to create new recipes.[3] The idea behind this experiment was that Watson could determine novel food parings and recipes as it is capable of processing every possible combination of food whereas chefs have limited creativity and time. The researchers at IBM were correct and Chef IMB Watson was able to create new dishes, for example, Swiss-Thai asparagus quiche and Australian chocolate burritos.[4] These dishes being just two of what researchers think will be millions of more ideas that Watson will discover.[5]

Knowing that recipes are patentable subject matter, I hope that the issues that AI in combination with a NPE could cause are becoming clear.[6] If a NPE could obtain a program such as Watson, they could potentially be in possession of millions of patents to licence or litigate. Moreover, the entity does not need to be a NPE for this to be an issue; if AI is creating millions of “recipes,” there would necessarily be patented, or at least patentable, subject matter not being used by the practicing business.

This conclusion does however beg the question: “would the NPE be entitled to the patents generated by the inventive content created by the AI?” A question which has not yet been answered by the courts or through legislation. Although some have suggested that “a computer’s owner should be the default assignee of any invention”, this finding was not made with regards to an artificially intelligent empowered NPE.[7]

Therefore, I cannot say that “a computer’s owner should be the default assignee of an invention” or that this opinion is wrong in light of the concerns raised above. However, I can echo the quote above and say that, when it comes to AI, there needs to be regulatory oversight. In other words, NPEs are already negatively affecting the economy and innovation, and if you do not want to imagine a future where NPEs are armed with artificially intelligent patent generators, we will need new and proper regulation.

Denver Bandstra is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

[1] Joe Mullin, “Patent troll lawsuits head toward all-time high” Ars Technica (7 October 2015) online: <https://arstechnica.com/tech-policy/2015/07/patent-troll-lawsuits-head-towards-all-time-high/>.

[2] The Supreme Court of the United States ruled in TC Heartland that that a patent infringement case must be brought where the infringement occurred and not necessarily in the Eastern District of Texas. TC Heartland LLC v Kraft foods Group Brands LLC, 581 US __ (2017); Mike Montgomery “SCOTUS Smacks Down Patent Trolls” Forbes (2 June 2017) online: <https://www.forbes.com/sites/mikemontgomery/2017/06/02/scotus-smack-down-patent-trolls/#6215dc75ae4b>.

[3] Maanvi Singh, “Our Supercomputer Overlord Is Now Running A Food Truck” National Public Radio (4 March 2014) online: <http://www.npr.org/sections/thesalt/2014/03/03/285326611/our-supercomputer-overlord-is-now-running-a-food-truck>.

[4] Ibid.

[5] Ibid.

[6] Larry Tarazano, “Can Recipes Be Patented?” Inventors Eye (June 2013) online: < https://www.uspto.gov/custom-page/inventors-eye-advice-1>.

[7] Ryan Abbott, “I Think, Therefore I Invent: Creative Computers and the Future of Patent Law” 57 BLC Rev 1079 (September 2016) at 2.

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The modus operandi of a P.A.E., such as IPNav, is not complex: it is a company that acquires (usually temporary) rights on a batch of patents from different rights holders.�� After identifying companies that are allegedly using these patents without authorization from the patent holder, the P.A.E. will attempt to monetize its patents by charging licensing fees or threatening (and sometimes engaging in) costly lawsuits.

These practices have been  by the media and society because P.A.E.s themselves do not commit any investment in the innovative process and the legal arguments used to support the rights claimed by the P.A.E.s are, in many cases, weak. In some instances, even if a patent has not actually been infringed upon, a company that receives notice by a P.A.E. may consider it worthwhile to pay licensing fees in order to avoid the threat of further costs and time spent in a possible lawsuit. It is not a coincidence that the main targets of P.A.E.s are such as Amazon, Oracle, and Citigroup - businesses of higher net worth that may be willing to pay more in response to such claims. For these reasons, P.A.E.s are often referred to as “patent trolls.” A by researchers at Boston University School of Law reveals that the activities of patent trolls in 2011 cost approximately US$ 29 billion for “trolled” companies.

Due to these business practices, P.A.E.s are often cited as the enemy of innovation.�� The President of the United States, Barack Obama, in February 2013 that patent trolls exist to extort money and do not contribute to innovation, and that legal reform is needed to prevent the misuse of the patent system. In June 2013, the White House major steps to improve incentives for future innovation in high tech patents by . These steps include executive measures, such as tightening functional claiming and strengthening the enforcement process of exclusion orders, and legislative recommendations, such as requiring patentees and applicants to disclose the real party-in-interest, permitting more discretion in awarding fees to prevailing parties in patent cases, and protecting off-the-shelf use by consumers and businesses.

P.A.E.s, however, claim to represent positive forces for innovation. P.A.E. owners often argue that their activities are very important to , who may not have the organizational and financial structures necessary to enforce their exclusive patent rights. Through the support of P.A.E.s, small inventors can obtain appropriate compensation when their patents are infringed by third parties, encouraging them to invest more time and money in new innovations. Furthermore, Erich Spangenberg emphasizes that entities like IPNav can also help large innovative companies monetize their patents, encouraging future investments by these companies in new technologies.

It is important to note that not all lawsuits filed by P.A.E.s are abusive or lack reasoned legal grounds. The P.A.E., IPCom, was successful in against the German company Deutsche Telekom and indirectly contributed to compensating inventors of the infringed technologies. From this perspective, P.A.E.s acting in accordance with ethical and legal standards actually by small inventors and large companies alike.

In this blog, and opinions about the activities of P.A.E.s have been reported, reflecting the contrasting positions held by the media and legal critics. This is also indicative of the fact that this topic will be open for continued discussion and debate. Currently, there are no specific legal provisions concerning these entities at the international level, causing considerable legal uncertainty.

In my opinion, considering all P.A.E.s as enemies of innovation and banning them indiscriminately is not compatible with current commercial practices, nor is it a way to promote innovation.�� It is a common occurrence that the direct economic beneficiary of an intellectual property right is not necessarily the inventor or creator per se, but a third party who has acquired these rights (e.g. copyright enforced by music publishers, patent rights enforced by large technology companies). The practice of assignment and transfer of patent rights is expressly allowed under . In principle, therefore, the activities of P.A.E.s are not necessarily illegal or disadvantageous to society.

In fact, P.A.E.s only become a problem for development and innovation when they misuse patent rights, abuse procedural requirements, or threaten companies into settlements based on non-existent infringement. In such cases, bad faith actions of patent trolls have to be identified and punished by the courts on a case-by-case basis. General and indiscriminate prohibition of P.A.E.s would achieve these goals but at the same time eliminate the benefits that these entities provide. Indeed, it may be that other areas of law and current policies need to be changed in order to eliminate the misuse of patent rights. The importance of high-quality patents for avoiding patent trolls has been expressly by the European Commission - granting patents for imprecise and ambiguous claims lead to misleading interpretations on the scope of a patent and facilitate abusive practices.

Any current abuse of rights by patent trolls also reveals the major flaws in patent litigation procedures. Due to the high cost of litigation, extensive length of proceedings, legal uncertainty in the area of patents, and the risks of granting preliminary injunctions, companies are more apt to settle when faced with a claim from a patent troll  - even if the claims lack a strong foundation.�� Reforming procedural law as it relates to patent litigation should also be reconsidered by legislators in order to avoid potential abuse in the future.

In conclusion, the activities of P.A.E.s, when performed under ethical standards, are valid from a legal perspective and can actually support the innovative activities of both small and large companies. Instead of outright prohibiting P.A.E.s, the most reasonable solution would be to identify and evaluate abusive lawsuits filed by P.A.E.s on a case-by-case basis. Furthermore, requiring Patent Offices to engage in a more thorough analysis of patent claims before granting intellectual property rights and effectively reforming procedural laws may help to prevent the proliferation of abusive patent trolls.

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In 1996, Jim Logan received a for a personal audio device that would allow users to select and download audio tracks for offline enjoyment. Personal Audio eventually launched a service where users could receive cassette tape audio recordings of magazine articles on demand.�� The company has not released a product in 15 years, yet, Personal Audio received a continuing patent in 2012 and was successful in a patent infringement suit against Apple for . Apple appealed the ruling and later settled for an undisclosed amount.

Personal Audio is now going after individual podcasters with against NBC, CBS, ACE Broadcasting and HowStuffWorks.com. Logan says that his company will not go after smaller podcasters, but several individuals, including comedian have reported receiving letters from Personal Audio informing them that their activities infringe Personal Audio’s patent. The activities of Personal Audio have led several critics to label the company as a "patent troll."

Logan sees nothing wrong with allowing a patent holder to come forward and claim infringement on a product that they did not manage to bring to market. His claim is that he put $1.6 million into development and his only remaining asset from the venture is the patent itself. This is part of the allure of the patent - that even when a product is unsuccessful, an individual may still be able to get a return on their investment when another entity wants to licence the patent and "try again." The argument remains that patents provide incentive for innovation through the economic rights related to the intellectual property covered by a patent.

In 2012 Logan obtained a continuation patent and was able to succeed against Apple.�� This is one angle from which others might attempt to challenge the patent’s validity. Canada takes a restrictive approach to patentability and does not have continuing patents. In my opinion, it is doubtful whether Logan’s original patent would hold up under opposition under the Canadian patent system, as he would not have had the same ability to update it to reflect the ways in which the technology developed. Although purposive construction of claims can blur Canadian patent parameters, the lengthy review process makes it less likely for a patent to pass basic threshold tests when challenged in the Federal Court.

Canada also has procedural safeguards in place that would affect how defendants may choose to proceed against a patent troll. Canadian courts are reluctant to award interlocutory injunctions in patent infringement cases, which limits the ability for patent trolls to threaten an injunction to force a settlement at an early stage in the proceedings.

When threatened with patent infringement, alleged infringers have to make a choice - defend against the claim at a substantial financial cost (with no guarantee of "winning") or attempt settling to avoid court costs and an extended time in litigation proceedings. In Canada, a lack of interlocutory injunctions and the possibility of costs awarded to successful defendants provides an incentive to defend against a weak claim.

One suggestion to combat patent trolls has been discussed by Professor Cameron Hutchison of the University of Alberta, who proposed using the concept of  in property law to deal with companies like Personal Audio. This idea would require patent holders to commercially develop their invention. If a patent holder does not bring their invention to market within a specified time, others could use the defence of "adverse possession" when a patent holder comes forward to claim infringement.�� This may also curb the registration of over-broad patents that are able to encompass future technologies, as is the case with Personal Audio.

This latest string of suits could be the straw that breaks the camel’s back for patent trolls in the United States.  against Personal Audio for what it calls “a classic example of an over-broad software patent”.�� EFF, along with Harvard’s Cyberlaw Clinic, and few vocal podcasters have put out the call to challenge the validity of the patent and demand legislative reform.

Allison McLean is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.��

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On September 21, 2009, The New 91��ɫ Times featured an article entitled . This article is about the story of a small-inventor firm called Zoltar Satellite Alarm Systems and their battles with big corporations over its patented inventions.�� In the mid-1990s this company filed two patent applications, one for a ‘personal alarm’ device that used GPS technology and another for a patent on personal alarms with navigational receivers in cell phones. The company showed its technology to cell phone equipment makers in the hopes of licensing it and after this, according to Zoltar’s founders, their ideas began appearing in big companies’ products.

Zoltar sued and their patents were found to be valid, but it was also found that the defendant company was not infringing them. Even though Zoltar lost its case, the big company settled with them, as did others. While they are ahead financially, Zoltar now plans to auction off its patents at an auction next month, hoping among other things to save money on legal fees. The article states that these auctions will help solve the legal problems of these small firms because prices will be determined not by the courts but by bidders and thus they will be fairly compensated.

There are two problems with this article. The first of these problems is that this small firm, Zoltar Satellite Systems, may not really be one of the "good guys". In fact, it seems that they are a patent troll which, according to Wikipedia, is a “person or company that enforces its patent against one or more alleged infringers in a manner considered unduly aggressive or opportunistic, often with no intention to manufacture or market the patented invention.” They are neither a cell phone manufacturer nor do they produce GPS products. Nor do they even have a website, which is odd for any company, but especially for one that licences its technology to some of the biggest cell phone manufactures. With an estimated staff size of three employees (according to this) it is unlikely that they would be able to develop a marketable product with their idea. Big companies don’t willingly infringe patents in general.�� Patents suits really affect their stock prices and scare off investors, and in the US, willful infringement results in treble damages being awarded.  Also, big companies tend to have much more to lose than the other way around. A small company can sue a big company for infringement and claim all kinds of damages and get tens of millions or more. A big company can’t get much money out of a little company.

Secondly, patent auctions aren’t really a good thing, in that patents are typically trickier to value than financial investments.�� It’s not just a matter of saying "since this a patent about cellular phones and GPS it must be worth a lot". It really depends on the actual text of the patent, its claims, and the resulting scope. Some patents are so narrow that it is easy for a competitor to design around it. This means that it is both expensive and hard to value patents, and people bidding would have to be informed directly by legal experts. Also, most of the time there aren’t that many people interested in a patent – for example, in the Zoltar case only a half dozen cell phone manufacturers would have been interested in the patent. In which case, what is the point of the auction since each manufacturer could be contacted individually?

If the article seemed to be trying to support the independent inventor, it might be because they do generally have a hard time, but this is because of other reasons. It is hard to start a business and get enough investors, and it is unlikely for an independent inventor with very limited means to come up with an invention that large companies with hundreds of engineers haven’t already come up with. However, stating that they have problems simply because they have to battle big corporations over the use of their patents is not quite reality. In fact, there are cases of small companies battling big corporations and using this as quite a successful business model. There is the case of Ronald A. Katz who has obtained more than 50 US patents involving call center technology. He has earned more than a billion dollars in licensing fees, while aggressively suing companies who don't take a licence.

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The focus of the paper is on the high-tech patents, which comprises of hardware, software and financial inventions. The hardware category includes patents covering semiconductor technologies, memory and digital signal processing (chip) architectures and design. The software category includes patents covering user interfaces, database technology, software development, computer graphics and cryptography. The financial category includes patents classified as financial process, business practice, management or cost/ price determination data processing inventions.

While acknowledging the fact that each patent dispute is unique, the paper identifies different types of popular patent litigation profiles- non-practising entity (NPE) Suits; Litigation-Avoidance/ Patent Detente; Sport of Kings; David v. Goliath; Predation; and others.

NPE Suits:

In the paper, the term NPE refers to a corporate 'patent enforcement' entity that neither practices nor seeks to commercialize its inventions. The core business of NPEs is essentially patent enforcement. NPEs typically have a reputation of suing mature companies that have sold allegedly infringing products. Since the NPEs do not have products of their own, counter-suing for patent infringement is not possible.

An interesting feature of NPEs is their focus on high-tech inventions, instead of the ones catering to biotechnology. The reasons are multifold: 1) NPEs have historically acquired their patents from distressed or bankrupt companies, principally casualties of the Internet bubbles; 2) the products in computer and semiconductor-related industries tend to be covered by many patents, increasing the likelihood of infringements; and 3) in high-tech, it is arguably easier to file a paper patent that can be bought and sold free of the underlying technology. Biotechnology inventions have more stringent enablements and written description standards which are more difficult to meet without having actually made the invention.

Litigation-Avoidance/ Patent Detente:

Companies can discourage threats of suits by their competitors by building portfolios of patents. Companies that engage in defensive patenting tend to be large, which on one hand makes them vulnerable to patent litigation, and on the other gives them the ability to underwrite large patent portfolios. However, despite the increasing practise of defensive patenting, the share of suits involving hardware and software inventions has actually risen. This is explained by the fact, among other explanations, that defensive patenting is not intended to guard against lawsuits brought by plaintiffs with little product revenue- NPEs or individuals.

Sport of Kings:

This refers to the litigation involving large corporations, a consequence of which is usually patent warfare. The stakes could be as high as $25 million, and the average litigation costs could jump to $5.5 million. Some well-known examples include battles between Qualcomm against Broadcom, and Creative against Apple.�� 

David v. Goliath:

The lawsuits involving individual inventors against large corporations fall under this category.�� The paper states that several studies have shown that individuals and small companies are more likely to sue than large companies. What distinguishes NPEs and such individual inventors is the motive behind the lawsuit. The independent inventors are perceived as seeking not only money, but also justice or vindication by a court. Also, an individual with fewer resources is likely to be more selective than an NPE about its targets and the patents it asserts.

Predation:

This is a strategic use of patent litigation by established companies to impose distress on their financially disadvantaged rivals. Such litigation can damage a defendant's credit rating, its relationship with customers and its reputation with investors, regardless of how the suit ultimately resolves.

This paper uses the research data from Stanford's IP Clearinghouse for cases initiated in the U.S. District Courts from January 2000 through March 2008. Some of the interesting findings are captured in Table 1.

 Table 1: Patent litigation suit study results calculated based on the absolute number of suits as a function of suit categories 

Table 1 indicates that the 28% of all suits fit the sport of kings profile.�� This can be explained by the fact that most of the software and hardware patents are owned by large corporations. NPEs, considered willing and eager litigants, only constitute 19% of the total number of suits. Noticeably, the NPEs contribute the most towards the financial patents suits. It is speculated that this may partially be due to the substantial uncertainty associated with financial patents, which the NPEs are more willing to exploit.

Overall, the study provides insight into the patent litigation lawsuit environment in the U.S., and provides a perspective on how effectively the system is working. While it does not address patents never litigated, or patents never licensed, it nevertheless provides a guideline for direct reformations and developments in the patent regime.

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