The calm after the US patent litigation storm
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The calm after the US patent litigation storm

Patent litigation has been slow so far in December after a rush to file at the end of November. This means 2015’s will fall short of the record 2013 year. Filers this month have also had to take the new pleading rules into account in their complaints

Patent cases filed in US district courts

2013

2014

2015

January

486

330

445

February

547

448

491

March

404

500

507

April

605

680

390

May

503

387

608

June

485

414

654

July

476

419

478

August

521

395

309

September

552

320

327

October

515

340

443

November

578

334

845

December

422

439

131*

Total for year

6,094

5,006

5,628*

*as of December 15 2015

Source: Docket Navigator

In the first 15 days of December only 131 US patent cases were filed in US district courts. This compares with the whopping 260 cases filed on November 30 alone, and the 846 cases filed in the whole of November.

The slow December figures at the halfway stage of the month put the month on course for about 260 cases. This compares with the average monthly filing figure of 417 cases in 2014 and 508 in 2013. This year up to the end of November was running at 458 cases a month.

As of yesterday, 5628 district court cases had been filed so far in 2015, which means the year is already ahead of 2014’s 5006 cases filed. Last year started off at a brisk pace but fell away in the second half after the Supreme Court’s Alice v CLS decision came out in June.

The year will end behind the record 2013 year, however, when 6,094 patent cases were filed.

The rush of cases filed in November was the result of companies looking to file ahead of amendments to the Federal Rules of Civil Procedure that became effective on December 1. This is, of course, also the reason that filing in December has been slow, with many companies likely taking the view that any complaints planned for December should be fast-tracked to beat the new rules being implemented.

US patent litigation

The amendments included removing the ability to file a bare-bones complaint consisting of merely the patent tile, patent number and an allegation of infringement. They also introduced the concept of proportionality into discovery. 

As I noted in my analysis of the long-term effects of the new rules (available to subscribers and triallists to Managing IP), it is unclear what exactly will need to be alleged in complaints now. Saranya Raghavan of Banner & Witcoff recently notedthat “it is unclear whether it is sufficient for plaintiffs to identify at least one claim that is infringed, whether plaintiffs must identify exactly which claims are infringed, or whether plaintiffs need to provide an element-by-element infringement analysis short of claim charts provided as part of infringement contentions".

Another uncertainty is whether the new rules could be applied retroactively to require plaintiffs filing complainTS before December 1 to amend them to include more detail.

In the first few days of the amendments being in force, it seems some filers were not up to speed:

@mdloney New complaints don't look like they are in compliance with new pleading standards. Attornies didn't get the memo. — IPHawk (@TheIpHawk) December 2, 2015


While others believe the amendments have not led to a great change in the detail in petitions:

new #patent case pleadings; main difference is simply listing claim elements, say they r in product, not big change pic.twitter.com/wgoHR30tFA — J Nicholas Gross (@JNGross) December 9, 2015
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