For 'Patent War' Alarmists, Time to Make Peace with the Empirical Data

Abstract

The narrative that the U.S. patent system is bogged down in an unprecedented wave of litigation is not borne out by the empirical data. And pointing the finger at smartphone standard essential patents (“SEPs”) is a particularly egregious mischaracterization. In this article, we explain why the data—when properly contextualized—do not support the conclusion that patent litigation has increased in the U.S. in any meaningful sense. Specifically, we look past the myopic focus on a single flawed metric—the raw number of lawsuits—and contextualize the data by examining highly pertinent factors such as changing procedural rules and the increased number of patents granted, among others. We then turn our attention to the so-called “smartphone patent wars” and demonstrate how the data, when normalized to account appropriately for relevant economic and other factors, also do not support a conclusion that smartphone SEPs are at the root of litigation activity. Finally, we present qualitative explanations for why patent litigation in the smartphone industry does not suggest a broken patent system, in any event.

Keywords: patents, standard essential patents