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Whether it's a demand letter alleging infringement or another company is infringing your intellectual property rights, we can help. We have extensive experience assessing the fundamental issues of patent infringement, validity, and enforceability.

We advise clients on prelitigation strategies and help our clients prepare for possible litigation. Our experience in adversarial matters enables us to predict the arguments opponents may raise. By combining our litigation and transactional experience, we are able to guide our clients to mutually beneficial settlements before litigation commences.

We have experience in all aspects of adversarial counseling, including reverse engineering of target systems, selection of patents for enforcement, initial negotiations with potential defendants and, if necessary, initiating legal action.

Cybersecurity IP Litigation on the Rise

Federal courts are seeing a dramatic increase in the assertion of information security patents. The number of information security patents asserted in federal court cases has steadily increased from 18 in 2000 to 95 in 2011. As the current rate, we expect that approximately 115 information security patents will be asserted in 2012.

Year
Patents
2000
18
2001
12
2002
22
2003
8
2004
26
2005
28
2006
36
2007
46
2008
75
2009
68
2010
91
2011
95
2012
115*
*2012 projection based on data through Sept. 12, 2012.


Our analysis was performed by collecting raw data representing all patents within specified PTO classes/subclasses that were asserted in federal court complaints during the period from Jan. 1, 2000, to Sept. 12, 2012. It includes complaints alleging infringement as well as complaints seeking declaratory judgment of noninfringement or invalidity. Due to source data limitations, the analysis may not include patents identified in amended complaints, counterclaims, or other post-complaint filings. The results were then de-duplicated to remove reassertions of the same patent, whether against additional parties, or in subsequent complaints seeking additional remedies.

The analysis above highlights the number of unique inventions for which stakeholders have resorted to litigation to enforce or defend.

We have also analyzed the same data to identify all assertions of information security patents, including those that have been asserted and reasserted again against multiple defendants. The results, presented below, demonstrate how active information security patent litigants have been.

Year
Cases
2000
23
2001
16
2002
49
2003
16
2004
48
2005
43
2006
54
2007
68
2008
183
2009
122
2010
158
2011
197
2012
829*
*2012 projection based on data through Sept. 12, 2012.

The data from 2012 indicates a substantial increase in patent assertions. This increase is attributable to changes made by the America Invents Act ("the AIA") which was enacted on Sept. 16, 2011. Before the AIA, plaintiffs could join multiple defendants in the same lawsuit on the basis that each of the defendants infringed a common patent. As a result of the AIA (see, 35 U.S.C. § 299), it is no longer possible to join multiple defendants “solely on allegations that they have infringed a patent or patents in suit.” This provision was intended to discourage the previously common practice of naming numerous defendants in one complaint. Our research indicates that, as a result of the AIA, patent owners have responded by filing multiple complaints naming one defendant instead of a single complaint naming multiple defendants.

The increase in information security patent litigation contrasts with the overall trend for patent litigation. A study reported at Patently-O found that patent litigation (excluding certain false marking suits) has been essentially flat since 2003. (Data from 2008 missing from original plot)


This analysis considered the following PTO classes/subclasses as relating to information security:

PTO Class
Class Description
380
Cryptography
455/410
Telecommunications : Radiotelephone System: Security Or Fraud Prevention
455/411
Telecommunications : Radiotelephone System: Security Or Fraud Prevention: Privacy, Lock-Out, Or Authentication
705/18
Data Processing: Financial, Business Practice, Management, Or Cost/Price Determination: Having Security Or User Identification Provision (Password Entry, etc.)
705/50 - 705/79
Business Processing Using Cryptography
705/901-705/912
Digital Rights Management
711/164
Electrical Computers And Digital Processing Systems: Memory: With Password Or Key
713/150 - 713/194
Multiple Computer Communication Using Cryptography, etc. (Includes classes 713/200-202 which were abolished in 2005 and added to class 726.)
726
Information Security