Lex Machina’s Spring 2015 Patent Case Filing Trends:
Patent case filings have been generally higher in the first five months of 2015 than in the last 8 months of 2014. May of 2015 had the most patent cases filed on any month so far this year (606 cases).
Lex Machina depicts this trend in this graphic:
But why are we seeing this recent increase in patent case filings? Isn’t this surprising given legislative, court, executive and administrative developments that have made it much more difficult to successfully sue for patent infringement? Nope.
However difficult it is right now for the party bringing a patent lawsuit, the House and Senate are considering additional reforms that will make things even more difficult. In June, reform legislation was approved by the respective Judiciary Committees of each chamber: Innovation Act (H.R. 9) and PATENT Act (S. 1137).:
The proposed reforms further increase the hurdles to bringing a patent case, ostensibly to protect against abusive practices by so-called non-practicing entities (and the many variations of the same). Among the things under consideration:
- challenging bad faith demand letters
- requiring that “loser pays” fees and costs
- requiring specificity in pleading infringement
- staying claims against downstream users or customers
- phasing expensive discovery to occur after early case resolution
- disclose parties with financial interest in party bring suit (see “loser pays”)
True enough, the pending legislation also corrects some of the problems with the creation of new procedures in 2012 for challenging the validity of a patent after it has been issues (“post grant review”), and these changes will make it more difficult to assert such challenges — but not so much that the cottage industry that has grown up around the 2012 procedures will abate in any significant fashion.
Whichever side you take in the dispute regarding the need to crack down on too many patent cases (vs protecting innovation by inventors and small companies), there appears to be a clear correlation between the spike in patent case filings and the growing momentum for new and even more stringent limits on patent litigation.