Pedram Sameni
Jul 12, 2017
Featured

Patexia Insight 38: Patent Litigation Down 14 Percent While IPR Up 31 Percent in the First Half of 2017

In the first half of 2017, we saw a continued decline in patent litigation. District court litigation was down 14 percent to 2,039, compared to 2,482 in the first half of 2016. As for quarterly comparisons, we observed a modest increase of about 10 percent in the second quarter of 2017 (1,121 cases) compared to the first quarter of 2017 (1,018 cases). Inter-Partes Review (IPR) was up 31 percent to 986 in the first half of 2017, compared to 751 in the first half of 2016.

On a quarterly basis, IPR activity declined about 20 percent in the second quarter (436 IPR filings in Q2 vs. 550 IPR filings in Q1). But this number still settled in at about 5 percent higher than the same quarter last year (436 filings in Q2 of 2017 vs. 416 filings in Q2 of 2016).

Given that the majority of IPR filings show a direct relation to district court litigation, with a continued downward trend in patent litigation, we expect to see some slowing down of IPR activity as well. However, should corporations start leveraging IPR as a tool for licensing negotiations, we could see an uptick in IPR activity independent of litigation. Having said that, with the current pace, we still expect an all-time high IPR filing number in 2017. We showed in Patexia Insight 12 that IPR is heavily utilized by a small number of companies, and we believe this trend will continue in the second half of 2017.

Since September 2012, more than 6,500 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 be just shy of 2,000 challenges.

Out of more than 6,500 cases, about 31 percent have been denied (2,063 cases) and roughly 40 percent have either received a final written decision or have been instituted. The following table summarizes the status of all cases as of July 8, 2017.

 

IPR Status No. of Cases
Terminated-Denied

2063

FWD Entered 1752
Terminated-Settled 918
Instituted 702
Notice OF Filing Date Accorded 506
PO Response Filed 273
Submitted 108
Others 227

 

During the last three months, we started reviewing the law firms and attorneys representing petitioners and patent owners in IPR cases. We ranked the top 5 law firms and attorneys from both a quality and quantity perspective for all of the IPR cases filed through the end of 2016. We published our findings over a period of several weeks, and our 75,000-plus subscribers have received a copy of the publications via emails. Thanks to your feedback, in the coming weeks we plan to update and correct the rankings for all of the cases. Our upcoming, updated results will also cover data for all of the cases in the first quarter of 2017 (through end of March 2017).

To this point, our primary source of data has been PTAB. However, as you can imagine, no single source of data offers 100 percent accuracy. Adding to the complexity of this analysis, attorneys sometimes use different variations of their names or use multiple email addresses in formal filings. Additionally, they may move from one firm to another, which makes the detection process even more difficult.

We are using natural language processing techniques to normalize the names and to make this process more reliable. However, 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 (e.g., institution decision, final written decision, et cetera).

If you would like to review your cases, you can search for your name here and then directly update your profile. Later this month, we will publish the rankings of the top 5 law firms and attorneys representing either petitioners or patent owners. For this update, we will consider all the changes made by attorneys until Friday, July 21 (i.e., cutoff date). Changes to profiles after that will be included in our next update in October.