Based on our informal survey and analysis of patent lawsuits, energy companies will see both an increase in lawsuits filed by “patent trolls” and will find that a decreasing percentage of their defensive patent litigations are against competitors. To date, the complaints about patent trolls—also known as non-practicing entities (NPEs) and patent assertion entities, among other names—have primarily come from technology and retail companies that have been embroiled in patent litigation against patent trolls. Retailers are relatively new to the debate. In fact, in 2010, we predicted an uptick in patent cases filed in the retail industry because of an increase in cases filed by NPEs. We now predict that energy and oil and gas companies will join that debate as they deal with the significant costs associated with defending against patent cases filed by NPEs (which we define as entities, other than universities, that do not manufacture anything or provide any services) without the opportunity for cross-licensing that cases against competitors present.
Energy companies should therefore take this possible trend into account when revising and implementing their risk mitigation plans and their patent litigation strategies and budgets.