Patent Cases Continue to Fall in 2017 Q1

Ryan Davis has a good article out on the filing stats from Q1 of 2017 by Lex Machina, and it’s more of the same – patent case filings continue to drop both nationwide and in EDTX, with filings in EDTX continuing to drop slightly more.  2017 Q1 was actually the lowest quarter in terms of filings since 2011 (meaning since enactment of the AIA), which is saying something since there wasn’t a preceding quarter event that caused filings to spike (FRCP rule changes in December 2015, patent legislation news – that sort of thing).

In fact, the Q4 spike as a result of the FRCP rule amendments was the last significant bump in filings, resulting in what LM “legal data scientist” (damn, I wish I’d thought of that title) Brian Howard calls the “new normal.”

As we saw last year, filings in the EDTX are dropping slightly more than the national average, with the district’s share of patent cases dropping from 36% to 33%.  Perhaps not coincidentally, Delaware’s share is up from 10.1% in 2016 to 13.8% so far this year.

Capitol Days in Austin

Took a break for a few days this week to go to Austin to work on state legislative issues with some old friends and colleagues, including representatives of the Texas chapters of the American Board of Trial Advocates.  

I unexpectedly got an opportunity to testify on a bill dealing with motions to dismiss at a hearing before the House Judiciary and Civil Jurisprudence on behalf of Tex-ABOTA, and since it was patterned on FRCP 12(b)(6) motions I really enjoyed it.  Fortunately my law school mock trial partner Lin McCraw, who’s serving as president of the Texas Trial Lawyers Association this year testified after me and got everything straight for the members of the committee.

That was the first time I’ve testified before a legislative committee in Austin in exactly 30 years (yes, I am now that old).  I won’t say it was worth the four hour wait, but it could have been worse – the hearing actually went on another three hours after I left.

Visited with several legislators, including my new state senator, former Judge Steger law clerk Bryan Hughes, and my law partner Larry Phillips, who has the pleasure this session of serving as chair of the House Insurance committee (still unclear who he pissed off), and spent a lot of time in conference rooms watching floor debates and committee hearings. Brought back some good memories of my days in Austin during graduate school, especially during a session.  I was watching the House yesterday morning when Chairman King welcomed a group of student to “your Capitol” and that reminded me what a great experience it is as a Texan to see the big beautiful Texas Capitol.

But as I told people on the way out yesterday, being around the Lege in action is sort of like Disneyworld.  It’s a lot of fun for about three days, but then everything starts looking like Mickey Mouse and you’re really ready to go home.  It was very good to head out yesterday afternoon for the Easter break, and I am pretty sure everyone else around the pink dome felt the same way.

How Do You Know When The Case Is Over?

Ever had that situation where you think you have a settlement, but the other side doesn’t, or vice versa?  I mean in the absence of horned and breastplated opera singers, of course. That was the situation presented in this case, where the parties in a patent infringement case appeared to have settled their dispute, but the final settlement agreement fell through when Defendants learned that the Patent Trial and Appeal Board (PTAB) had instituted inter partes review (IPR) of one of the asserted patents. The Court found that

EDTX Grant Rate on 101 Motions Up to 75%; Del/ND Cal. 101 Grant Rate Drops to 23%

Fenwick & West’s BilskiBlog had a good summary of the state of 101 caselaw as of the end of Q1 2017 yesterday.  Most notable to me was their observation of the pronounced change in grant rates for 101 motions in patent-heavy district in the last six months.

They compared grant rates from mid-2014 through the third quarter of 2016, and then over the past six months, uncovering two significant trends.  First, the three top districts in terms of rulings that are not the EDTX had grant rates from 65-74%, but those rates dropped dramatically to 18-40% in the last six months.  Excluding CD Cal and only looking at the double digit districts, the rate is 18-25%.

In contrast to its 31.9% grant rate from 2014-2016, however, the EDTX grant rate for 101 motions the last six months has increased to 75%, with 12 of 16 motions being granted.  That is over three times the grant rate in D Del and ND Cal, which are currently at 23%.

The reason for the spike appears to be a batch of grants in March 2017, but the post recognizes that the overall national trend is a downward one nonetheless.