Last Thursday, we released our third Patent Litigation Intelligence Report covering patent litigation activity for a 5-year period from July 1, 2017, through June 30, 2022. The report provides high-level statistics for 18,493 district court patent cases filed during the period, including rankings of all parties, their representatives, and judges. After covering highlights of the report, including Judge Alan D. Albright becoming the Go-To Judge for Patent Cases (Patexia 165) and 5-Year Patent Litigation Trends (Patexia 166), this week we will shift our focus to some of the most active attorneys in patent litigation during the past five years.
While economists debate whether the economy is in a recession, companies are focused on protecting their market share by enforcing their intellectual property (IP) rights and monetizing it to add value to their balance sheets. Nowadays, a company's value, reputation, and success can be closely linked to its intellectual property, making it crucial to protect it. At the 2022 SelectUSA Investment Summit, USPTO Director Kathi Vidal emphasized the importance of innovation and IP in her opening remarks. She stated that innovation drives the U.S. economy, and the protection of the intellectual property is the key reason companies are willing to invest in new plants, equipment, and jobs. Ultimately, this is why it’s essential to study the relationship between innovation-driven growth and IP data trends.
For over a decade, Patexia has supported the IP community by following IP intelligence using advanced AI and natural language processing (NLP) techniques. The Patexia data science team has developed proprietary technology capable of reading hundreds of thousands of litigation documents, automatically detecting the case type such as patent, trade secret, trademark, or copyright litigation, and BPCIA and ANDA cases among others, as well as automatically extracting all patents and parties involved in the case. This technology not only improves data quality by reducing the chance of human error, but it also increases the speed of data extraction and the number of data fields that can be extracted, enabling the creation of reports like the Patent Litigation Intelligence Report.
As mentioned in Patexia 166 last week, the 2023 report features numerous updates and improvements, from changes to the ranking methodology to the introduction of the "patent litigation family" concept. Patent litigation often spans multiple legal venues and crosses international borders, making it difficult to understand the overall strategies of all parties involved by examining a single case or relying solely on case volume. To address this, Patexia has introduced the concept of a "patent litigation family," which considers all cases that share one or more patents in common, including foreign patents, as part of the same family. The chart below illustrates the annual activity of U.S. district courts in terms of active patent litigation families per year, with families with a single case and families with multiple cases separated. Note that for 2017 and 2022, only half-year activity is covered.
Companies may employ various strategies, including utilizing intellectual property rights in pre-litigation or International Trade Commission (ITC) Section 337 investigations, to obtain injunctions. However, the most popular venue for patent litigation remains U.S. district courts, with an annual average of 3,000 to 4,000 new patent cases filed across the country. A total of 18,493 cases were filed during the study period, involving 1,322 district court judges, 20,065 companies, 17,052 attorneys (including local counsel), and 3,608 law firms. These 18,493 patent cases revolved around a total of 17,377 distinct patents.
Out of the 17,052 patent attorneys named in one or more patent litigation cases, 16,585 were identified as lead counsel, representing either defendants or plaintiffs, while the rest served as local counsel. Among the lead counsel, 10,839 represented plaintiffs, while 11,581 represented defendants. The average number of patent cases handled by attorneys representing defendants was 3.7, while those representing plaintiffs handled an average of 5 cases. Patent cases can be highly complex, requiring the expertise of a skilled legal team.
Neil J. McNabnay of Fish & Richardson was the most active attorney overall, as well as the most active representing defendants. Isaac P. Rabicoff of Rabicoff Law was the most active attorney representing plaintiffs. Here is the list of the Top 50 Most Active Patent Litigators of 2023 based on the ranking methodology explained below:
When determining the activity score for all entities, including patent attorneys, we considered the input from our IP community and included the number of patents involved in each patent case. We have observed that, in some instances, a single plaintiff with a limited number of
patents may sue hundreds of companies. While more defendants typically result in more work for the plaintiff, the amount of work does not increase proportionally with the number of cases filed (using the same patents). Conversely, the number of patents involved in a case directly affects the amount of work that each party or their representatives must manage. As a result, the level of activity for a company, law firm, or attorney over a given period of time depends on the number of unique cases as well as the number of unique patents. In addition, we also used a slightly higher weight for more recent cases (i.e., weighting = 1.0 for 2020 cases, 0.98 for 2019 cases, 0.96 for 2018 cases, and 0.94 for 2017 cases). This has proven to be a very good method to evaluate activity since there are attorneys that have been more active in past years than in the present, while another attorney may have the same number of cases but has been more active recently, which ultimately makes them rank higher than the other attorney.
The 2023 Patexia Patent Litigation Report provides a comprehensive analysis of patent litigation attorneys, including full rankings for the top 1,000 most active. The report includes performance rankings, which are based on the outcome of cases and whether the represented party came out better than the opposing side after the case was terminated. The rankings and scores are calculated in six different categories and take into account the activity and performance of entities as plaintiffs, defendants, and overall. Similarly, the report calculates rankings for law firms and companies, as well as includes a separate section for judges active during the study period. For judges, we included a "plaintiff score," which indicates the likelihood of a favorable verdict for the plaintiff side.
The 2023 Patexia Patent Litigation Report is the first of eight reports planned for release this year, focusing on covering all of the significant venues for patent litigation as well as patent prosecution. The company is also expanding with a Trademark Litigation Report in addition to the Trademark Intelligence Report series, which covers the trademark prosecution landscape.
Stay tuned as in the following weeks we will provide more statistics and highlights from our Patent Litigation Intelligence Report, including some of the most active companies during the period of our study.
Note: A version of this article appeared on IP Watchdog here.