patent litigation: trends, tensions and transitions
TRANSCRIPT
Patent Litigation: Trends, Tensions and Transitions
March 31, 2021
squirepattonboggs.com
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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
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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.
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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
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• 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
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Patent Cases 2010 – 2020 (by Year)
Source: Docket Navigator
All
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Patent Cases 2013 – 2020 (by Year), Without Frequent Filers
Excluding High Volume Plaintiffs
Source: Lex Machina Patent Litigation Report, March 2021
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Design and ANDA Cases 2010 – 2020 (by Year)
ANDADesign
300300
Source: Docket Navigator
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Patent Cases 2019 – 2020 (by Quarter)
AllPandemic
Begins
Source: Lex Machina Patent Litigation Report, March 2021
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Patent Cases 2019 – 2020 (by Month)
Source: Docket Navigator
PandemicBegins
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Design Cases 2019 – 2020 (by Month)
Source: Docket Navigator
Design
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Biotech Cases 2019 – 2020 (by Month)
ANDA
Source: Docket Navigator
Non-ANDABio / Chem
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Computer Cases 2019 – 2020 (by Month)
Computer Networks & Security
Source: Docket Navigator
Computer Software & Communications
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Tech & Manufacturing 2019 – 2020 (by Month)
Semiconductors, Electrical, Optical
Source: Docket Navigator
MechancialEngineering & Manufacturing
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Other Cases 2019 – 2020 (by Month)
Transportation, E-commerce, Construction, Agriculture
Source: Docket Navigator
Unclassified
Looking Beyond the Numbers
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Most Active Districts by Cases Filed in 2020
Source: Lex Machina Patent Litigation Report, March 2021
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Most Active Judges by Cases Filed in 2020
Source: Lex Machina Patent Litigation Report, March 2021
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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)
Source: Lex Machina Patent Litigation Report, March 2021
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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
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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]
Patent Litigation
Trends – Court
Case Progress
and Outcomes
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Time to Events in Patent Cases Ending in 2020
Source: Lex Machina Patent Litigation Report, March 2021
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Time to Claim Construction by Court, 2018 – 2020
Source: Docket Navigator
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Number of Claims Construed 2014 – 2020 (by Year)
Source: Docket Navigator
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Case Resolutions for Cases Terminated in 2020
Source: Lex Machina Patent Litigation Report, March 2021
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Cases with Patent Findings in 2020
Source: Lex Machina Patent Litigation Report, March 2021
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Cases with Invalidity Findings in 2020
Source: Lex Machina Patent Litigation Report, March 2021
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Total Patent Damages Awarded 2013 – 2020
Source: Lex Machina Patent Litigation Report, March 2021
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Total Patent Damages by Type Awarded
Source: Lex Machina Patent Litigation Report, March 2021
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Cases with Patent Findings by Judgment Events 2018 – 2020
Source: Lex Machina Patent Litigation Report, March 2021
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Cases with Rulings on Permanent Injunctions 2013 – 2020
Source: Lex Machina Patent Litigation Report, March 2021
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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
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PTAB Petitions by Trial Type
Source: USPTO PTAB Trial Statistics
Oct. 1, 2020 to Feb. 28, 2021Oct. 1, 2019 to Sept. 30, 2020
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PTAB Outcomes in FY2020
Source: USPTO PTAB Trial Statistics
By Patent By Challenged Claim
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Institution of Review 2014 to 2020
Institution Granted
Not Instituted: Merits
Not Instituted: Procedural
Source: Unified Patents Annual Report
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Institution Rates by Technology
Source: USPTO PTAB Trial Statistics
Oct. 1, 2020 to Feb. 28, 2021Oct. 1, 2019 to Sept. 30, 2020
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Institution of Review, 2012 – 2021
Source: Docket Navigator
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PTAB IPR Outcomes, 2014 – 2020 (by Year)
Source: Docket Navigator
Patent Litigation –
The Road Ahead
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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
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Questions?
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