Just the Facts is a feature that highlights issues and trends in the Judiciary based on data collected by the Judiciary Data and Analysis Office (JDAO) of the Administrative Office of the U.S. Courts. Comments, questions, and suggestions can be sent to JDAO.
Over the past 20 years, the overall number of intellectual property cases filed in the U.S. courts has increased dramatically. However, after sharp increases in the early 2010s, patent infringement case filings now have started to fall, copyright case filings have fluctuated, and trademark case filings have held steady. Most intellectual property cases are concentrated in a handful of states.
The framers of the U.S. Constitution believed that codifying intellectual property (IP) rights at the federal level was important to economic independence, innovation, and domestic growth. IP rights were established in the U.S. Constitution in Article I, Section 8, which declares that Congress has the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” This ”IP Clause”1 text has been attributed to James Madison and James Pinckney, who both submitted proposals related to IP rights at the Constitutional Convention of 1787 in Philadelphia. The IP Clause was approved unanimously by the delegates without debate.2 George Washington also was a proponent of establishing IP rights at the federal level, which he considered necessary for the country to achieve economic independence.3
Others disagreed, warning that excessive legal protections could result in a monopoly of ideas that hindered innovation in the public sphere. Thomas Jefferson and Ben Franklin never sought patents for their inventions and saw their creations as gifts to the public. Madison, however, pushed for stronger protections for the inventor. The Patent Act of 1790, the first intellectual property statute passed by the federal government, was a compromise between the two positions.4 Although Jefferson warned against excessive IP rights, as secretary of state he headed a Patent Commission review board and personally tested patent submissions.5 6 Later, the patent examination system was replaced by a registration system that reduced the waiting times for processing applications and left questions of patent validity and enforcement to the courts.7
Background
Adjudication of IP law at the federal level was intended to promote innovation and ensure consistency across states.8 IP cases include three types of civil cases: patent, copyright, and trademark.
Patents are rights granted to the inventors of new processes, machines, and/or products as codified in the 1952 Patent Act (Title 35 §§ 1-390). The numbers of patent applications and awards have risen greatly over the nation’s history. In 1791, a total of 33 utility patents9 were awarded; in 2015, a total of 298,407 utility patents were awarded.10
Copyright laws allow artists and authors to have exclusive rights to the work they have made, to create and sell copies of their work, and to perform or display or display their work publicly. The statutory basis of copyright laws is codified in the 1976 Copyright Act (Title 17 §§ 101 – 1332).11
Trademark laws are intended to protect any name, logo, or phrase used in commerce to distinguish one manufacturer from another. Unlike patent laws and copyright law, trademark laws are not authorized by the IP Clause. In 1879, the U.S. Supreme Court ruled in the United States v. Steffens, 100 U.S. 82 (1879) (Trade-Mark cases)12 that the Constitution’s IP Clause did not authorize Congress to regulate trademarks. In response to this ruling, in 1881 Congress passed the Trademark Act, which is based on the Constitution’s Commerce Clause (Article I, Section 8, Clause 3). This legislation gave Congress the authority to protect and regulate trademarks. The statutory basis for current trademark law is codified in the 1946 Lanham Act (15 U.S.C. §§ 1051 – 1141n).13
In patent cases, the decision of any U.S. district court can be appealed to the U.S. Court of Appeals for the Federal Circuit (CAFC). In trademark cases and copyright cases, the decision of any district court can be appealed either to a regional circuit court of appeals or to the CAFC.14 Decisions of the regional appeals courts or the CAFC can be appealed to the Supreme Court.
Facts and Figures
Intellectual Property Filings Over Time
Figure 1 displays data on filings of intellectual property cases by type from 1996 to 2018. Trademark case filings have remained relatively stable during this period. Patent case filings started rising dramatically in 2009, then began decreasing in 2016. Copyright filings increased from 2002 to 2005, from 2011 to 2015, then decreased for two consecutive years before spiking to their highest number in 2018. Some of the fluctuations in intellectual property filings are related to legislative actions and judicial decisions that have occurred within the past decade.15
Copyright Filings in 1996-2018
- Copyright case filings began rising sharply in 2003 and continued to rise for the next three years.
- Copyright case filings began falling rapidly in 2006, then continued to drop for the next three years.
- In 2012, copyright case filings began to rise drastically again. Filings varied over the next several years, reaching a new high in 2018.
Patent Filings in 1996-2018
- In 2010, patent case filings began to drastically rise. They doubled between 2009 and 2013.
- In 2018, patent case filings dropped for the third year in a row, falling to levels seen in 2010.
Trademark Filings in 1996-2018
- Trademark cases were the most frequently filed type of IP case in 1996.
- Filings of trademark cases have remained relatively stable between 1996 and 2018.
- Trademark cases were the least frequently filed type of IP case in 2018.
Intellectual Property Filings by Type and State
From 1996 to 2018, California, New York, and Texas had the most IP filings in the country. By filing type, California had the most copyright filings and trademark filings, while Texas had the most patent filings. See Figure 2.
Intellectual Property Filings by State
Map 1 shows data on intellectual property filings by state from 1996 to 2018. Use the filters to view filings by type and year. This figure offers the following insights.
Copyright Filings in 1996-2018
During this period, 44 percent of all copyright cases were filed in California, New York, and Texas.
-
California had the highest number of copyright filings:
- 16,817 filings,
- 22 percent of the national caseload.
-
New York had the second-highest number of copyright filings:
- 11,115 filings,
- 15 percent of the national caseload.
-
Texas had the third-highest number of copyright filings:
- 5,223 filings,
- 7 percent of the national caseload.
Patent Filings in 1996-2018
During this period, 48 percent of patent cases were filed in Texas, California, and Delaware.
-
Texas had the highest number of patent filings:
- 16,164 filings,
- 20 percent of the national caseload.
-
California had the second-highest number of patent filings:
- 13,478 filings,
- 17 percent of the national caseload
-
Delaware had the third-highest number of patent filings:
- 8,676 filings,
- 11 percent of the national caseload.
Trademark Filings in 1996-2018
During this period, 42 percent of all trademark cases were filed in California, New York, and Florida.
-
California had the highest number of trademark filings:
- 16,526 filings,
- 21 percent of the national caseload.
-
New York had the second-highest number of trademark filings:
- 9,659 filings,
- 12 percent of the national caseload.
-
Florida had the third-highest number of trademark filings:
- 6,823 filings,
- 9 percent of the national caseload.
Figures and Map
1 The Intellectual Property Clause is also known as the Copyright Clause or the Copyright and Patent Clause.
2 Ochoa, Tyler T. and Mark Rose. 2002. The Anti-Monopoly Origins of the Patent and Copyright Clause. Journal of the Patent and Trademark Office Society. 84 (12): 909-940.
3 Constitutional Rights Foundation. The Origins of Patent and Copyright Law. Bill of Rights in Action. Volume 23, No. 4, Winter 2008, https://www.crf-usa.org/bill-of-rights-in-action/bria-23-4-a-the-origins-of-patent-and-copyright-law. Retrieved January 31, 2020.
4 Sinnreich, Aram. 2019. The Essential Guide to Intellectual Property. New Haven, CT: Yale University Press.
5 Wyman, W.I. 2003. Thomas Jefferson and the Patent System. Journal of the Patent and Trademark Office Society. 85 (Supplemental Issue): 33-45.
6 Myers, Gary. 2017. Principles of Intellectual Property Law. Eagan, MN: West Academic Publishing.
7 Schecter, Roger and John Thomas. 2003. Intellectual Property: The Law of Copyrights, Patents and Trademarks. Eagan, MN: West Academic Publishing.
8 Sinnreich, Aram. 2019. The Essential Guide to Intellectual Property. New Haven, CT: Yale University Press.
9 The utility patent, which is the type of patent most frequently sought, can be traced back to 1790. Design patents were not awarded until an 1842 statute permitted this. The U.S. Plant Patent Act of 1930 allowed plant patents to be awarded.
10 U.S. Patent Activity Calendar Years 1790 to the Present. Retrieved January 31, 2020 from https://www.uspto.gov/web/offices/ac/ido/oeip/taf/h_counts.htm.
11 Miller, Arthur R. & Michael H. Davis. 2018. Intellectual Property, Patents, Trademarks, and Copyright in a Nutshell. Eagan, MN: West Academic Publishing.
12 The Trade-Mark cases were a consolidated set of cases appealed to the Supreme Court in 1879. http://cdn.loc.gov/service/ll/usrep/usrep100/usrep100082/usrep100082.pdf. Retrieved January 31, 2020.
13 U.S. Congressional Research Service. Intellectual Property Law: A Brief Introduction (September 19, 2018), by Kevin J. Hickey. https://fas.org/sgp/crs/misc/IF10986.pdf. Retrieved January 31, 2020.
14 Patent appeals that originate in the U.S. district courts, including counterclaims, are exclusively the jurisdiction of the United States Court of Appeals for the Federal Circuit (CAFC). All district court decisions involving patent laws are subject to review by the CAFC. However, “permissive counterclaims” in which the counterclaims are related to separate allegations other than the plaintiffs’ claims are subject to review by the regional circuit court of appeals. Claims involving questions that overlap both patent law and copyright or trademark law are reviewed by the CAFC, whereas copyright and trademark cases that originated in the district courts and do not involve any patent questions are reviewed by regional circuit courts of appeals. Source: Peter Marksteiner, Circuit Executive and Clerk of Court for the U.S. Court of Appeals for the Federal Circuit.
15 Many factors can influence the volume and geographic distribution of intellectual property filings. For example, laws such as the Leahy–Smith America Invents Act, H.R. 1249, 112th Cong. (2011), which limited multi-defendant patent cases, resulted in higher filings. In 2017, the Supreme Court’s decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017), and the Federal Circuit’s ruling in In re Cray Inc., 871 F.3d 1355, 1367 (Fed. Cir. 2017), interpreted patent case venue and thereby impacted the geographic distribution of patent cases.
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