Patent Litigation: Trends, Tensions and Transitions

Patent Litigation: Trends, Tensions and Transitions

March 31, 2021

squirepattonboggs.com

2 I squirepattonboggs.com

Steven M. Auvil

Steve Auvil leads the Squire Patton Boggs Intellectual Property & Technology Practice Group’s litigation practice in the US, and his practice is focused on litigation of intellectual property (IP) disputes. As an engineer and patent lawyer, he has been exposed to a wide variety of technologies, including control systems, power electronics, communication systems, medical devices, steel production, complex mechanical systems and software systems. Steve has been listed in Chambers USA Leading Lawyers since 2007 and The Best Lawyers in America since 2006.

In more than 25 years of practicing law, Steve has served as lead trial counsel and successfully represented clients in numerous patent, trade secret, copyright and trademark/trade dress cases in federal district courts throughout the US. He has also argued several patent-related appeals before the US Court of Appeals for the Federal Circuit. In addition, he has handled a significant number of disputes before US administrative agencies, including 337 actions before the US International Trade Commission and proceedings before the Patent Trial and Appeals Board. Finally, Steve has represented clients in IP-related disputes before arbitration tribunals.

While Steve’s practice focus is in litigation, he also has considerable non-litigation experience, including counseling clients on IP matters, preparing and prosecuting patent applications, and negotiating agreements that involve IP. Steve is a frequent speaker on IP law topics and has spoken to clients, industry groups and IP organizations throughout the US and abroad on topics ranging from US Supreme Court jurisprudence to patent law to the Defend Trade Secrets Act.

Steven M. AuvilPartner, Washington, D.C. and ClevelandE [email protected] +1 202 626 6632T +1 216 479 8023


Tamara D. Fraizer

Tamara D. FraizerPartner, Palo Alto, CAE [email protected] +1 650 843 3201T +1 408 507 1768

Tamara Fraizer is a partner in the Squire Patton Boggs Intellectual Property & Technology Practice Group, with a practice focused on patent disputes. Tamara helps her clients assess, leverage and enforce patent rights, and defend against patent claims.

Tamara was educated as a biologist and earned her PhD in Population Biology, which involves computer and mathematical modeling of biological systems as well as data analytics. Her legal experience spans the life sciences and technology, including biotechnology, medical devices, pharmaceuticals, computers and software, analytics, and consumer products.

Over the last 19 years, Tamara has litigated countless patent cases in federal courts across the nation and at the US International Trade Commission. She has been recognized as a California Super Lawyer in IP Litigation since 2011. Tamara is also a registered patent attorney with experience prosecuting patents before the USPTO, and she both pursues and defends against post-grant challenges before the PTAB.

A former lecturer in science at the University of California, Tamara now enjoys speaking about and discussing IP issues with other professionals and mentoring younger lawyers. Tamara is also the editor of the firm’s Global Intellectual Property & Technology Blog.


Factors

The COVID pandemic

The rise of the WDTX (Judge Alan Albright)

PTAB reforms that favor Patent Owners

Patent Litigation in 2020

Impact

Filing activity

Practice changes

Case progress

Litigation strategy


• Widespread stay-at-home orders beginning in March 2020

• Transition to remote depositions, hearings, mediations, and trials

• Jury trial slowdown

The COVID Pandemic

Patent Litigation

Trends – Filing

Activity


Patent Cases 2010 – 2020 (by Year)

Source: Docket Navigator

All


Patent Cases 2013 – 2020 (by Year), Without Frequent Filers

Excluding High Volume Plaintiffs

Source: Lex Machina Patent Litigation Report, March 2021


Design and ANDA Cases 2010 – 2020 (by Year)

ANDADesign

300300



Patent Cases 2019 – 2020 (by Quarter)

AllPandemic

Begins



Patent Cases 2019 – 2020 (by Month)


PandemicBegins

Author


Design Cases 2019 – 2020 (by Month)


Design


Biotech Cases 2019 – 2020 (by Month)

ANDA


Non-ANDABio / Chem


Computer Cases 2019 – 2020 (by Month)

Computer Networks & Security


Computer Software & Communications


Tech & Manufacturing 2019 – 2020 (by Month)

Semiconductors, Electrical, Optical


MechancialEngineering & Manufacturing


Other Cases 2019 – 2020 (by Month)

Transportation, E-commerce, Construction, Agriculture


Unclassified

Looking Beyond the Numbers


Most Active Districts by Cases Filed in 2020



Most Active Judges by Cases Filed in 2020



Most Active Plaintiffs and Defendants

Plaintiffs Defendants

WSOU Investments LLC (182) Google LLC (48)

Cedar Lane Technologies Inc. (53) Samsung Electronics America, Inc. (42)

Juul Labs, Inc. (50) Microsoft Corporation (40)

Symbology Innovations, LLC (47) Samsung Electronics Co., Ltd. (40)

Castlemorton Wireless, LLC (26) Dell Technologies Inc. (36)



Most Active Petitioners and Patent Owners

Petitioners Patent Owners

Samsung Electronics Co. (113) Masimo Corp. (30)

Samsung Electronics Amer. (87) Neodron Ltd. (26)

Apple, Inc. (63) Gree, Inc. (22)

Google LLC (58) Monterey Research, LLC (21)

Unified Patents, LLC (41) Rovi Guides, Inc. (21)

Source: Unifed Patents


CLE

For those of you who require CLE credits please note the following states have been approved or pending CLE in AZ, CA, NJ, NY, OH (pending), and TX.

Please write down the following affirmation code [Patent331].

A couple business days after today’s session you will receive an email with a link to the uniform certificate of attendance and program evaluation to complete and SUBMIT to my colleague, Robin Hallagan at [email protected]

mailto:[email protected]

Patent Litigation

Trends – Court

Case Progress

and Outcomes


Time to Events in Patent Cases Ending in 2020



Time to Claim Construction by Court, 2018 – 2020



Number of Claims Construed 2014 – 2020 (by Year)



Case Resolutions for Cases Terminated in 2020



Cases with Patent Findings in 2020



Cases with Invalidity Findings in 2020



Total Patent Damages Awarded 2013 – 2020



Total Patent Damages by Type Awarded



Cases with Patent Findings by Judgment Events 2018 – 2020



Cases with Rulings on Permanent Injunctions 2013 – 2020



0

10

20

30

40

50

60

70

80

90

100

ALL x DDE CDCA NDCA EDTX

2014 - 2018 (ANNUAL AVERAGE)

1/2019 to FINTIV

FINTIV to 3/2021PERCENTAGE OF MOTIONS DENIED

Denials of Stay Pending PTAB Review, by Year and Court

Patent Litigation –

PTAB Institution

Decisions and

Outcomes


PTAB Petitions by Trial Type

Source: USPTO PTAB Trial Statistics

Oct. 1, 2020 to Feb. 28, 2021Oct. 1, 2019 to Sept. 30, 2020


PTAB Outcomes in FY2020


By Patent By Challenged Claim


Institution of Review 2014 to 2020

Institution Granted

Not Instituted: Merits

Not Instituted: Procedural

Source: Unified Patents Annual Report


Institution Rates by Technology


Oct. 1, 2020 to Feb. 28, 2021Oct. 1, 2019 to Sept. 30, 2020


Institution of Review, 2012 – 2021



PTAB IPR Outcomes, 2014 – 2020 (by Year)


Patent Litigation –

The Road Ahead


Patent litigation should remain strong in 2021

District court trials should increase as pandemic recedes and courts re-open and catch up on their dockets

Courts will push parties toward ADR because of backlog in cases

Massive judgments in favor of patent owners will encourage litigation, particularly NPE litigation

Patent transactions and litigation finance will continue to fuel patent litigation

Discretionary denials of IPRs under Fintiv will encourage litigation in W.D. Texas (Waco) and other rocket dockets that disfavor stays

Looking Ahead


Questions?


Americas

Atlanta

Cincinnati

Cleveland

Columbus

Dallas

Denver

Houston

Los Angeles

Miami

Newark

New York

Palo Alto

Phoenix

San Francisco

Santo Domingo

Tampa

Washington DC

EMEA

Abu Dhabi

Berlin

Birmingham

Böblingen

Bratislava

Brussels

Budapest

Doha

Dubai

Frankfurt

Leeds

London

Madrid

Manchester

Milan

Moscow

Paris

Prague

Riyadh

Warsaw

Asia Pacific

Beijing

Hong Kong

Darwin

Perth

Seoul

Shanghai

Singapore

Sydney

Tokyo

Americas office Locations

EMEA office Locations

Asia Pacific office Locations

Country desks and strategic alliances

45 Offices in 20 Countries

Global Presence

Africa

Argentina

Brazil

Chile

Colombia

Cuba

India

Israel

Italy

Mexico

Panamá

Peru

Turkey

Ukraine

Venezuela

Country desks and strategic alliances

Documents

Patent Litigation: Trends, Tensions and Transitions