Patexia Insight 12: Top 25 IPR Petitioners Filed Nearly 30 Percent of All Challenges
This week, Patexia Data Science team analyzed nearly four years of data to find the 25 most active IPR petitioners. From September 2012 through June 2016, more than 1,100 unique petitioners filed 4,704 IPR challenges. However, the top 25 petitioners were responsible for 28 percent (1,317) of these challenges. This new and powerful tool for challenging patents has become very popular to the level that now it is an integral part of defense strategies. For example, during that span, Apple filed 213 IPRs, or about 5 percent of all challenges, which placed them first in using IPR as a defense mechanism in patent litigation. Beyond consumer electronics, the automotive and pharmaceuticals industries also have leveraged this tool extensively.
Major carmakers such as Ford, Toyota, Volkswagen and Mercedes Benz, as well as auto part manufacturers including TRW Automotive have been using IPR extensively. The following table summarizes the top 25 petitioners. All are operating companies except Unified Patents and RPX, which are non-practicing entities helping defendants in patent suits.
It is interesting to note that ten out of these companies have a non-US parent company, and together they are responsible for 480 IPRs, or 35 percent, of the top 25’s filings.
| Rank | IPR Petitioners | Number of IPRs |
|---|---|---|
| 1 |
Apple |
213 |
| 2 |
Samsung |
127 |
| 3 | Microsoft | 91 |
| 4 | 87 | |
| 5 | LG Electronics | 81 |
| 6 | Sony | 59 |
| 7 | TRW Automotive US | 53 |
| 8 | Unified Patents | 44 |
| 9 | Ford Motor | 42 |
| 9 | Toyota Motor | 42 |
| 11 | Cisco Systems | 39 |
| 12 | Intel | 38 |
| 12 | Oracle | 38 |
| 14 | Mylan Pharmaceuticals | 37 |
| 15 | Gillette | 36 |
| 16 | IBM | 33 |
| 17 | Medtronic | 32 |
| 18 | Volkswagen | 31 |
| 19 | ASML Netherlands BV | 29 |
| 20 | Mercedes Benz | 28 |
| 20 | RPX | 28 |
| 20 | Toshiba | 28 |
| 20 | ZTE | 28 |
| 24 | HTC | 27 |
| 25 | General Electric |
26 |
| 25 |
Micron Technology |
26 |
| 25 |
Smith & Nephew |
26 |
Looking at the areas where most of the filings took place, Communication (Technology Center 2600) was ranked first with close to 20 percent of all cases. However, transportation and automotive was third with 11.5 percent of all cases. Pharmaceutical/biotech was responsible for nearly 10 percent of cases.
Lately at IP conferences, patent professionals have been debating IPR and PTAB, as many believe it is changing the landscape in favor of defendants and/or licensees. A few weeks ago we released statistics about the outcome of the IPR challenges, including the institution and final decision rates and how it is evolving over the short period of time it has become effective.
In that analysis, we reviewed all the IPR challenges at the patent level and tried to calculate the institution and final decision rates. However, as some experts rightly pointed out, the results may be skewed given that multiple companies can file IPRs on the same patent and only one may be instituted – and that is enough to potentially invalidate the patent’s key claims.
For example, out of all the IPR challenges investigated, we found in nearly 50 percent of the cases (2,466), the patent has been named in more than one IPR. For example, patent US 6853142, assigned to Zond Inc., has been named in 23 IPRs filed by Intel, AMD, Fujitsu Semiconductor, Gillette, Global Foundries and Renesas Electronics.
Sometimes, multiple IPRs must be filed if the petitioner wants to challenge numerous claims that cannot fit in PTAB’s 60-page limit. And sometimes multiple companies file the petitions for variety of reasons, such as different pieces of prior art.
Our analysis of these IPR challenges show that they have become an integral part of the defense strategy for many companies in tech, automotive and pharmaceutical industries. For example, the top 25 petitioners have been responsible for nearly 30 percent of all challenges filed since September 2012. We also learned that many patents might be named in multiple IPRs. Therefore, simple calculation of institution or final decision rates based on number of challenges and the status provided by the USPTO will not be accurate, as one patent may not be instituted due to reasons such as real party in interest, while it could get instituted and completely invalidated in other IPRs. This could skew a lot of statistics that are out there.
In the following weeks, we plan to look at the claim level to identify the true rate of invalidation, and if IPR really has changed the landscape in favor of licensees and defendants in patent suits. Stay tuned!