February 04, 2016

Review of Intellectual Property Litigation Trends over 2015

2 min

On January 7, 2016, Lex Machina, which presents data analytics for the legal industry, published a report on litigation trends through 2015 across patent, copyright, and trademark fields. The data show that patent litigation significantly increased in 2015 over previous years. In 2015, patent filings reflected 5,830 new cases and surpassed all previous years except for 2013, which has been an outlier at 6,114 cases filed. Interestingly, filings in 2015 also saw an unexpected increase in the last quarter, likely because of parties seeking to avoid application of certain changes to the Federal Rules of Civil Procedure that became effective as of December 1, 2015. In the fourth quarter of 2015 alone, over 1,500 cases were filed, resulting in a 41.2% increase from the prior quarter and demonstrating the highest quarter-over-quarter rise in over ten years.

The venue choices plaintiffs made (especially high-volume plaintiffs) in 2015 were consistent – favoring the Eastern District of Texas in 43.6% of filed cases, with the next highest concentration in the District of Delaware, at less than 10% of filed cases. Other districts with high concentrations of patent filings included the District of New Jersey, the Central and Northern Districts of California, and the Northern District of Illinois.

Outside of patent litigation in district courts, other intellectual property disputes have decreased. This includes those before the Patent Trial and Appeal Board (PTAB) and copyright and trademark cases filed in district courts. Fewer post-grant petitions for PTAB review were filed in the final quarter of 2015, with only 375 new requests for Inter Partes Review (IPR). This is the lowest quarter for filings since the first quarter of 2014. Requests for Covered Business Method review (CBM), meanwhile, only slightly increased from 20 petitions in Q3 2015 to 26 petitions in Q4.

Over the past ten years, trademark litigation has remained generally consistent, but filings in 2015 were the weakest in that period at 3,449 cases filed, and well below 2014 cases at 4,282 filings. While the flurry of filings in 2014 can be attributed partially to National Football League players suing over the use of their likeness in the District of Minnesota, 2015 still represents a dip below the norm by about 400 cases. Copyright cases similarly saw a decrease in filings, both those directed to file-sharing violations and more traditional cases, with file-sharing cases numbering less than traditional cases for the first time since the third quarter of 2014.

With a number of important decisions on the Supreme Court docket, and intellectual property-related legislation pending in Congress, 2016 portends to be an interesting year.