a Lex Machina blog post, plaintiffs filed 329 new federal
patent cases in September 2014, down from 549 cases filed in
the same month last year.
This does not seem a one-month anomaly. Filings over the
past five months have dwindled after a reaching a record high
in April 2014 (one week in April saw
an unusually large number of filings – 199
– which appeared to be a result of non-practicing
entities trying to pre-empt a proposed amendment to patent
Since 2011, new filings have generally fallen during the
summer and increased towards the end of the year. But Lex
Machina reports that filings this year have not so far shown
any signs of bouncing back upwards. Comparisons of
corresponding months in 2013 and 2014 show lower monthly totals
for 2014 since May.
The reason? The Supreme Court’s
decision in Alice v CLS Bank on June 19 appears to
be deterring filing. Mark Lemley, law professor at Stanford and
patent litigator at Durie Tangri, is in no doubt this is the
case. He believes more patentees are deciding not to file suit
following the Alice decision.
Alice made clear that merely implementing an
abstract idea on a computer is not patentable. Since then,
have been busy invalidating software patents that fall foul
of this, such as
one for a bingo game on a computer.
"In the past two months, we’ve seen over a
dozen decisions invalidating software and business method
patents on the basis of Alice," Lemley said
in the Lex Machina blog post. "That’s a
pretty strong deterrent to software plaintiffs whose patent
isn’t directed to specific new computer
This explanation seems reasonable, although Alice
may not be responsible for all of the fall in patent lawsuit
filing. For example, Patent Trial and Appeal Board proceedings
have become amazingly popular in the past year. The prospect of
a having a patent challenged at the PTAB would make anyone
holding a less-than-strong patent think twice about using it to
suing for infringement.
Three months of the year remain. They should reveal much
about whether Alice has caused a temporary pause while
patent owners digest Alice and its ramifications or
has brought about a more profound change in the filing of
patent lawsuits in the US.
If the effect is long term, this could have other impacts.
For instance, it could make it harder for those pushing reform
in Congress to claim statistics show that patent lawsuits are
going through the roof.