Dennis Crouch's Patently-O: Patent Litigation Update

Posted: 02 Jun 2015 11:08 AM PDT

By Jason Rantanen

Last month, Pricewaterhouse Cooper released its annual patent litigation study. The report, entitled “A change in patentee fortunes” contains a summary of notable patent litigation metrics, leading with the observation that patent litigation experienced its first decline in five years. However, as Grantland Drutchas points out on Patent Docs, the data PWC relied upon comes with a substantial limitation: it is for the Federal Court system’s fiscal year, which runs from October – September. The consequence is that the data in the PWC report is eight months stale. This staleness turns out to be fairly important when thinking about issues such as a declining patent litigation filing rate.

For those who like their data piping hot, below I’ve provided updated charts on patent litigation filings and pending patent cases. Two notes on this data: (1) I used LexMachina‘s search engine, which now allows searches by cases pending as of a given date and PTAB proceedings; (2) In order to simplify the searches, the monthly data actually covers the period from the 2nd of a given month to the 1st of the following month.

Some quick observations:

After falling off in 2014, pending district court patent litigation has plateaued for the last few months.
While patent case filings in the district courts experienced a dip in 2014 (but note the April surge), filings from the first six months of 2015 are up again. If the current trend holds, FY 2015 will see about as many district court patent case filings as 2013.
Since April 2014, challengers have filed over 100 inter partes reviews per month. Two ways to think about this data:
- On the one hand, if IPRs are leading to stays in district court proceedings, the rise in IPRs might suggest that the number of active patent cases over the past year is actually lower than the first figure indicates since some of these cases may be stayed while the PTAB activity plays out.
- On the other hand, if we think of IPRs as essentially litigation proceedings involving patents, then the dip in patent cases filed in 2014 is not quite as great as it first appears and the first few months of 2015 are taking us to new heights in case filings. In fact, when both district court filings and IPRs are counted together, the amount of new patent case filings during court FY 2014 actually rose slightly, from 6656 new cases in 2013 to 6753 in 2014. (As of May 30, 2015, there have been a combined 4708 new case filings; if this trend holds, there will be over 8000 new IPR + DCt filings for fiscal year 2015).

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Wednesday, June 3, 2015

Dennis Crouch's Patently-O: Patent Litigation Update

Dennis Crouch's Patently-O: Patent Litigation Update