3 Takeaways From The Lex Machina 2022 Patent Report

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intellectual-property-law-300×169In what has change into an annual custom, I used to be completely happy to listen to from the great of us at Lex Machina that their 2022 Patent Litigation Report was being launched. As readers of this column know, I’m a agency believer that considerate use of litigation analytics is usually a very efficient means of constructing certain that we’re in the very best place as IP litigators to advise our colleagues and shoppers. In reality, we’re approaching the purpose the place my reminiscence is beginning to fade about how we practiced earlier than the appearance of firms like Lex Machina, contemplating how essential the work that they do is when it comes to presenting an correct image of how IP litigation is unfolding. As all the time, I extremely suggest that readers register for the report and provides it a learn, as there could also be extra related info within the report than what follows for any given reader.

As is my wont, I wish to give attention to three idiosyncratic takeaways based mostly on my assessment of the report. In doing so, I’d prefer to illustrate some broader themes of what’s actually taking place in present patent litigation, impacted because it has been by our ongoing exit from the pandemic.

First, I’d prefer to give attention to what the report says is a pattern of patent filings “consolidating extra into the highest three courts.” Second, I wish to talk about what could also be resulting in the pattern of “ANDA filings that proceed to say no.” Third, I’ll examine why Federal Circuit filings based mostly on PTAB choices additionally skilled a major decline between 2020 and 2021.

We will begin with a have a look at what the report says in regards to the phenomenon of almost 60% of patent instances being filed within the three main districts for patent filings — the Western and Japanese districts of Texas and the District of Delaware. It’s well-known by now that the “motive for this drastic shift is because of Decide Albright’s concerted efforts to draw patent instances, with the end result that an growing variety of patent instances are funneled to the Western District of Texas.” On the identical time, the stark decline in case filings between 2019 and 2021 within the once-second and now-fourth most-popular district — the Central District of California — is illustrative of the truth that each quick-hit and litigation-funded plaintiffs are almost all the time Texas-first when it comes to their venue alternative. In reality, I’d submit that Delaware’s continued recognition is being sustained by the venue limitations imposed on plaintiffs by TC Heartland — and that however for these limitations, Texas can be much more fashionable than it already is.

The report notes, nonetheless, that it stays an open query as as to whether enthusiasm for the Western District of Texas will cool based mostly on the Federal Circuit’s proclivity to switch instances out of the district by way of mandamus petitions. For quick-hit plaintiffs, nonetheless, switch shouldn’t be actually part of the submitting calculus. And for funded instances, so long as litigation funders keep a Texas-or-bust mindset, we will count on to proceed to see the 2 Texas districts among the many hottest ones for patent filings for a while to come back. Likewise, the report means that additional motion when it comes to venue submitting recognition could be seen based mostly on the expiration of the Patent Pilot Program in some districts as of July 2021. However it’s arduous for me to see that impacting a lot on a plaintiff’s alternative of venue, particularly contemplating how restrictive a alternative most plaintiffs face within the first place.

Subsequent, it’s of curiosity for these with pharma patent litigation expertise to contemplate the report’s findings with respect to ANDA instances. As can be anticipated, distinguished generic pharmaceutical makers like Teva and Lupin are represented on the record of most frequent patent defendants. Likewise, ANDA instances can be anticipated to maneuver faster than your common patent case, whether or not as a result of they’re tried to the bench reasonably than juries or as a result of damages (and even infringement generally) usually are not thought of. One other contributing issue that the report factors to is the relative sophistication of the events concerned, which helps transfer issues alongside quicker. On the identical time, the variety of ANDA case filings has dropped steadily from 410 in 2017 to solely 253 in 2021. A part of that decline could also be as a result of consolidation that has taken place within the generic pharmaceutical trade, in addition to an elevated willingness of events to see if a prelitigation settlement may be reached — even because the report notes that once-filed “ANDA instances are much less more likely to settle early.” There could also be different contributing components, whether or not on the FDA aspect of issues or simply the final financial concerns of mounting costly assaults on branded medication in an unsure business surroundings. At a minimal, will probably be attention-grabbing to see if issues stabilize when it comes to post-pandemic ANDA case filings, or whether or not the decline will proceed over time.

Lastly, the steep decline in appeals to the Federal Circuit from PTAB choices, from 555 in 2020 to simply 334 in 2021 is value some dialogue. Because the report notes, PTAB operations had been “basically uninterrupted throughout the pandemic” which “doubtless contributed to the truth that PTAB petitions elevated in 2020 for the primary time since 2017.” But, appeals to the Federal Circuit declined considerably, which the report posits is “maybe as a result of clearer requirements set forth by the USPTO and the Federal Circuit Court docket in 2019.” Whereas extra readability on scope of assessment and appellate requirements of assessment is a possible contributor to the decline, I’d additionally counsel that the sub-25% reversal fee of PTAB choices by the Federal Circuit was one other main contributing issue. It is going to be attention-grabbing to see if the reversal fee goes up based mostly on fewer appeals being filed, since we’d maybe count on that the events selecting to attraction might have a stronger foundation on which to take action than if appeals from the PTAB to the Federal Circuit had been simply one thing performed as a matter in fact.

Finally, and as all the time, the wonderful thing about the report is that it has helpful info for anybody impacted by patent litigation. And completely different individuals studying the report are more likely to give attention to the takeaways which might be most germane to them. At backside, nonetheless, we should always as soon as once more be grateful to have had work to do over the previous 12 months, regardless of the challenges that proceed to current themselves worldwide. Thanks as soon as once more to Lex Machina for giving us a snapshot of what our collective efforts resulted in.

Please be happy to ship feedback or inquiries to me at gkroub@kskiplaw.com or by way of Twitter: @gkroub. Any subject strategies or ideas are most welcome.


Gaston Kroub lives in Brooklyn and is a founding associate of Kroub, Silbersher & Kolmykov PLLC, an mental property litigation boutique, and Markman Advisors LLC, a number one consultancy on patent points for the funding neighborhood. Gaston’s follow focuses on mental property litigation and associated counseling, with a robust give attention to patent issues. You may attain him at gkroub@kskiplaw.com or comply with him on Twitter: @gkroub.



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