The Western District of Texas remained the top venue for US patent litigation last year, according to the latest “Lex Machina Patent Litigation Report” published in May.
Cumulatively, the most popular venue over the past three years was the District of Delaware.
Between 2019 and 2021, the Delaware court took 24% of cases. The next four most popular courts since 2019 were the Central District of California, Eastern District of Texas, Western District of Texas and the Northern District of California.
The number of patent cases filed in these courts since 2020 were “surprising”, said one commentator, given the restrictions of COVID-19.
Speaking on a Lex Machina webinar about the report, Michael Flynn, IP litigation partner at Morris, Nichols, Arsht & Tunnell—which is based in Delaware—said: “It was surprising there was no drop-off after March 2020 when places started shutting down. It seems we’re on track for another robust year of patent filings.”
Judge Albright’s influence
The report also showed that patent case filings are consolidating more into the top three courts, from 47% in 2019, to 57% in 2021, with Judge Alan Albright taking 23% of all patent cases filed in 2021.
One reason for this change, states the report, is Albright’s “concerted efforts to attract patent cases, with the result that an increasing number of patent cases are funnelled to the Western District of Texas”.
Gloria Huang—legal content associate and a co-author of the report—told WIPR that the consolidation of a small number of districts, and particularly Judge Albright’s western district of Texas, was one of the most interesting findings for her.
“In the beginning, the PTAB had this reputation for finding everything unpatentable but obviously, over time, that’s not the case.”
Elaine Chow, Lex Machina
“That’s something that has a lot of eyes on it, not just lawyers, but politicians as well, as [Judge Albright] is getting a lot of attention for that.”
“It wasn’t necessarily a surprise,” she continued, “but seeing the raw data, seeing the numbers, for me personally was fascinating.”
Elaine Chow—patent legal data expert at Lex Machina—said of the popularity of the top five courts that “it will be interesting to see if this changes next year”.
Speaking on the Lex Machina webinar, Chow was referring to the potential impact of the national Patent Pilot Program, which ended in July 2021 (the Eastern District of Texas, Central District of California, and Northern District of California were participants).
Discussing the issue with Flynn in the webinar, Chow also referred to the Federal Circuit decisions reversing Albright on the transfer of cases to the Western District of Texas.
Meanwhile, patent case findings in the Federal District Court have dropped since 2015, from a high of almost 6,000 to between 3,500 and 4,500 filings per year. These numbers—including those for federal appellate case filings originating from patent cases—have remained relatively stable for the past three years, apart from Abbreviated New Drug Application filings, which continue to decline.
However, Federal PTAB appellate cases saw filings fall by 40% between 2020 and 2021, with 23% of cases terminated between 2019 and 2021 being ultimately reversed.
This is the first report from Lex Machina to include appellate analytics, which covers all of the federal courts of appeals.
Fall in federal PTAB appellate cases between 2020 and 2021 – with 23% of cases terminated between 2019 and 2021 being ultimately reversed.
Source: Lex Machina
Chow told WIPR that seeing a breakdown of the percentage of claims found to be unpatentable versus upheld was an interesting aspect of the new appellate figures.
“In the beginning, the PTAB had this reputation for finding everything unpatentable but obviously, over time, that’s not the case,” she commented. “For me that was interesting, just to see that change.”
Samsung, Lupin most active defendants
Elsewhere in the report, the data shows that the most active patent defendants were technology and pharmaceutical companies.
Samsung took the top two spots as having defended against the highest number of patent cases filed in 2021 and overall, followed by Google and Apple; while Lupin and Teva Pharmaceuticals ranked highest in pharmaceuticals.
The most common finding for cases terminated between 2019 and 2021 was infringement (almost 500 cases), the majority being for default and consent judgments.
Regarding patent damages, the number of cases awarded each year remained fairly steady over the past decade, at 50 to 80 cases per year. However, the range of total patent damages awarded each year fell within the approximate range of $1 billion to $5 billion per year.
Last year damages were awarded in 14 more cases than in 2020, but the overall amount fell by about $1 billion.
To receive a copy of the report, register on the Lex Machina site.
Main image: Shutterstock / D Guest Smith
