Richard Lloyd

There has been much to pick over from the litigation data for the first quarter of this year. There was the ongoing fall in the number of new cases which has dropped to levels not seen since 2011. There was also a notable spike in activity at the Patent Trial and Appeal Board (PTAB), which according to analysis from Unified Patents made it the most active quarter ever with 561 reviews filed.

One perhaps less noticed finding from Unified’s report was the appearance of Facebook among the top filers at the PTAB. In the first three months of this year the social media giant filed 21 reviews, making it the most second active filer and knocking Apple, which filed a relatively measly 16 reviews, into third place. Facebook was comfortably beaten into second place by Comcast which filed 36 reviews, mostly against Rovi with whom it is in a bitter licensing dispute.

Of course, we have become accustomed to major tech companies turning to the PTAB in an attempt to undermine infringement lawsuits filed against them. No other company has been a more active petitioner over the last five years than Apple with Samsung a distant second. But for Facebook the Q1 numbers show that it has clearly upped its focus on the PTAB.  Last year the company filed 25 reviews which was a massive jump on the previous year (when it filed just four reviews) and was enough to put it just outside Unified’s top five most active filers (Unified itself was 5th with 29 reviews). In the three previous years Facebook’s totals were all in single figures.

What’s interesting to note about Facebook’s petitioning activity is that there does not appear to be a strong correlation with the number of lawsuits filed against it. So far this year the company has had three cases filed against it (including one against its Oculus virtual reality subsidiary) while last year it had a total ten which was the same as 2015.

Facebook’s 21 reviews for Q1 were filed against five patent owners with three NPEs — Skky LLC, Sound View Innovations LLC and Windy City Innovations LLC — accounting for all but two according to data from Lex Machina. The company is in litigation with all five patent owners. This PTAB strategy has been seen before with Apple the leading exponent but as Facebook’s recent burst of activity shows, the social media business is a quick learner. 

Facebook at the PTAB

Q1 2017 21 petitions filed
2016 25
2015 4
2014 4
2013 8

Source: Unified Patents/Lex Machina