Patexia Insight 42: Patent Litigation Down 15 Percent While IPR Up 15 Percent (3Q2017)

In the first nine months of 2017, we saw a continued decline in patent litigation. District court litigation was down 15 percent to 2,921, compared to 3,418 in the first nine months of 2016. For the past three years, this has been an ongoing trend. As for quarterly comparisons, we observed a decline of about 19 percent in the third quarter compared to the second quarter of 2017 (917 cases vs. 1,062 cases). However, Inter-Partes Review (IPR) was up 15 percent to 1,369 in the first nine months of 2017, compared to 1,190 in the first nine months of 2016.

On a quarterly basis, IPR activity declined about 13 percent in the second quarter (381 filings in Q3 vs. 438 in Q2). This number was also down about 13 percent from the Q3 of last year (381 filings in Q3 vs. 439 in Q3 of 2016).

This quarterly decline in IPR is expected given that about 75 percent of IPR cases are filed as a response to district court litigation. With a continued downward trend in patent litigation, we expect to see some slowing down of IPR activity as well. Having said that, with the current pace, we still expect an all-time high IPR filing number in 2017.

Since September 2012, more than 6,900 IPR challenges have been filed. The annual filings have been growing steadily outside of a small dip last year. If we continue with the same pace, this year we will see around 1,800 challenges.

Out of more than 6,960 cases, about 32 percent have been denied (2,063 cases) and roughly 38 percent have either received a final written decision or have been instituted. The following table summarizes the status of all cases as of October 10th, 2017.

In terms of popular venues for patent litigation, PTAB is still number one followed by Texas Eastern District Court. However, with the recent rulings and limitations on venue shopping for patent cases (TC Heartland LLC v. Kraft Foods Group Brands LLC),we have noticed some decline in filing rate at Texas Eastern District Court and increase in both California and Delaware courts.

Last month we released IPR Intelligence, our first report from IP Insights series, where we reviewed the performance and activities of more than 1,000 law firms and 5,000 attorneys in about 6580 IPR cases. The report has received positive reviews and thanks to our partners, we are in the process of preparing a similar report for district court litigation in 2018.

As you know, we use complex natural language processing algorithms to identify the cases related to different entities. However, no method brings 100% accuracy. To ensure the data is as accurate as possible, we have recently given access to attorneys to review and complete their own cases, should their cases be incomplete or should some be missing. To preserve the data integrity, we have only enabled this feature for the attorneys to update their own cases. For security and verification purposes, they can only log in with their law firm email address. The attorney must have been named on at least one of the publicly filed documents for that case in order to receive the credit for that case. To review your cases, you can search for your name here and then directly update your profile for free.

In the coming weeks, we will release the names and performance of some smaller law firms that have been outperforming larger firms and have been named among Patexia Top 50 law firms in different IPR categories. Stay tuned...