Patent litigation is increasing. Specifically, the 13 percent rise in patent cases from 2019 indicates that the pandemic did not slow down litigants. This reverses the trend since 2015 of gradually decreasing numbers of new patent cases per year. Those involved in offensive and defensive patent cases should take note that the appetite to engage in patent litigation is increasing again.
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Patent plaintiffs routinely file patent cases in fora where they perceive a certain litigation advantage. The Eastern District of Texas saw a rise from 333 patent cases in 2019 to 395 in 2020.
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While the five-year decrease in patent lawsuits in the Eastern District is significant, so is the rise in cases in the Western District of Texas. There was a remarkable ten-fold increase in cases from 89 patent cases filed in 2018 to 857 in 2020. In 2020, Judge Alan Albright presided over 90 percent of all patent cases in the district.
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Additionally, litigants chose to file a smaller number of patent cases in the District of Delaware. There was a considerable drop from 1,001 cases filed in 2019 to 741 cases filed in 2020. It is too early to tell whether this was an anomaly, or the start of a trend in favor of filing suits in other districts.
Finally, the Northern District of California has also seen a rise in patent cases, increasing from 186 cases in 2016 to 278 in 2020. However, filings in the district briefly peaked in 2018, with a subsequent drop in 2019. Nonetheless, the district rebounded between 2019 and 2020 with a 15 percent increase in patent cases.
Beyond district court litigation, patent litigants have continued to make use of post-issuance proceedings before the PTAB (IPR, PGR and CBM), as well as proceedings before the ITC. While the numbers of proceedings before the PTAB have remained relatively constant over the past several years, cases before the ITC appear to have decreased—falling from 59 investigations in 2017 to 33 in 2020 according to Lex Machina.
Patent plaintiffs and defendants alike will need to consider and strategize with their patent programs for potential litigation in these districts, along with administrative proceedings at the PTAB and the ITC. The landscape of patent litigation continues to shift, but the dominance of the Eastern District of Texas is giving way to the Western District of Texas. In addition, traditional venues such as Delaware and the Northern District of California remain popular. Technology companies must track relative activity in these key districts to evaluate risks and opportunities.
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