Managing
IP’s
just-published analysis of US district court patent
litigation trends so far this year shows a clear trend:
litigation is increasing.
February’s number
of new patent cases filed was up 11% on January, which was up
2.5% on December. This continued the trend seen at the end of
the 2014, when December lawsuits increased a whopping 32% over
November.
It is only a month-on-month
analysis that shows an increase. The trend is also up when
compared with the same month in the previous year –
11% in February over February 2014, 36% in January and 3% in
December.
(See my article
US patent litigation surges in February, driven by software
cases for a full breakdown of the figures and an analysis
of how software cases are increasing at even faster rate
– subscription or free trial required).
Three straight months of
increasing patent litigation is a contrast to a few months ago
when the Supreme Court’s June 2014 Alice
decision, as well as the astonishing popularity of Patent Trial
and Appeal Board proceedings,
had appeared to put a dampener on lawsuit filing.
So what is going on? The frist
thing to note is that, just as a few months of patent
litigation trending down last year was not definitive proof of
a long-term trend, a spike back up is not a sure sign of a
lawsuit boom. The levels this year are still below 2013
levels.
But this year’s
increase throws up some questions to which there are not yet
clear answers to. For example, were plaintiffs merely pausing
planned litigation to see how Alice would
play out in the district courts? Were they taking time out
to work out new litigation strategies that would not be
affected by Alice before returning to the fray? Is the
increase being driven by companies with a long history of
litigation or by new companies?
February throws up some
contrasts. It saw the continued return of ArrivalStar, the
third-busiest NPE in 2013, following a pause in litigation for
most of 2014. The company
has filed nine lawsuits so far this year, following six
lawsuits in November and December. In contrast, a company
called Avioniqs filed 30 cases against airlines on February 6,
its first ever patent lawsuits. And just yesterday Qommerce
Systems sued 23 websites, alleging infringement of a "Dynamic
web storefront technology" patent. It had filed its first ever
patent lawsuits on February 17 when it sued 20 other
websites.
An
analysis from Unified Patents had an interesting tidbit to
mull over. As with our analysis, Unified – which
protects its members against NPEs – found that patent
litigation in February was up, although its figures gave a 9%
increase on January’s figures. But it also found:
"NPE litigation made up 65% of February 2015 initiated district
court cases, compared with 68% in February 2014 and 58% in
January 2015."
The pro-patent and anti-patent
lobbies will be sure to argue about what it all means. I have
previously argued on this blog that a pause before enacting
any further reform would be wise, with litigation falling, the
Supreme Court relaxing fee shifting standards under
Octane and limiting the scope of patentable subject
matter under Alice, and the PTAB shifting the balance
of power more towards defendants in litigation and away from
patent owners. I stand by that position, but reform supporters
are sure to pounce on the recent increase in litigation as
proof of the need for legislation.