This analysis is being cross-posted at my [Chicago IP Litigation blog/Retail Patent Litigation blog].
Lex Machina recently published its comprehensive 2017 patent litigation year in review. As usual, it is full of fascinating data and charts, which I commend for your consideration.
Most of us in the space know the biggest takeaways already — patent litigation is down, way down in all forums. District court patent litigation waned to its lowest point since 2011. That is no doubt in large part due to the corrective actions taken by Congress (the America Invents Act) and the courts, principally the Supreme Court, in the form of Alice (software patent ability), Octane Fitness (the exceptional standard for attorney’s fees awards), and Lexmark (patent exhaustion), among others.
TC Heartland has also had a major impact on where cases are filed since the Court’s ruling last spring. E.D. Texas filings are down nearly 50% since the venue ruling, while Delaware filings are up 70% during the same time. Central California, Northern California and New Jersey also show more modest increases, along with a variety of other districts that have considerably smaller patent dockets. Looking at the statistics another way, since TC Heartland only 13% of cases were filed in East Texas (down from 33%), with 23% filed in Delaware (up from 13%), and the remaining 63% filed in the other districts (up from 54%). Of course, with 13% of the filings, East Texas remains an important patent district, but it is no longer the powerhouse that it was and I would expect it to continue to slip as Delaware, California, Chicago and other courts continue to see larger percentages of the filings.
PTAB proceedings have also fallen off considerably. Some of that is no doubt related to the reduced district court litigation filed in 2017. But the Oil States cases awaiting the Supreme Court determination of the constitutionality of the proceedings is also certainly having a major impact. The Oil States decision will have a major impact upon the patent world, in terms of patent dispute proceedings and in terms of relative patent value.