Classification: Personal
10 Patent Prosecution, Litigation Practice Trends From 2020
By James Dowd, Mark Selwyn, and Jose Valenzuela (Jan uary 6, 2021)
While 2020 was a year of unprecedented challenges, it also spurred
ingenuity in the ways we practice and highlighted the centrality of
intellectual property to the American economy. As we head into the
promise of a new year, we pause to take stock of 10 practice tr ends from
2020.
1. Patent litigation increased significantly in 2020.
Despite COVID-19, 2020 was a robust year for patent litigation in th e U.S.
As of late December, 3,994 new patent cases were filed in U.S. district
courts, which exceeds 2019's full-year total of 3,592 by nearly 11% .[1]
This reverses the year-over-year declining trend since 2015 and surpass es
2017's total.
The year also demonstrated resilience and adaptation on the part of the
patent bench and bar, changing the way we practice. Since mid -March
2020, in-person depositions have all been but unheard of, and few courts
have held in-person hearings.
Yet the patent bench and bar responded by quickly developing new ways
to practice effectively during the pandemic. The tools available to conduct
remote depositions became remarkably good, we figured out ways to
review confidential material remotely and securely, and we even
conducted hearings and mock trials remotely.
Courts have also done an impressive job managing their rising caseloa ds
and issuing decisions apace. To be sure, there are elements of the practice
best done in person, and we look forward to the day when that can
resume. But in the meantime, the patent bench and bar rose to the
challenge.
2. The concentration of patent cases in five venues continu ed.
The consolidation of patent litigation in select venues continued in 202 0. Just five districts
accounted for more than 62% of patent cases filed last year,[2] with the U.S. District Court
for the Western District of Texas displacing the U.S. District Court for the District of
Delaware as 2020's top choice for plaintiffs.
Litigation over venue accompanied the concentration of cases in Texas, wit h two trends
emerging. First, for cases filed in the Waco Division of the Western Dist rict of Texas, the
court granted many motions for intradistrict transfer to Austin — resulting in an uptick of
such motions. There were 45 such requests in 2020, all of which were granted.
Second, and conversely, the court was less receptive to motions for interdistrict t ransfer.
Patent defendants filed 20 such motions in 2020, with the U.S. Dist rict Court for the
Northern District of California requested most often as the preferred tra nsferee forum. Of
the 20 motions, 11 were denied, eight were granted,[3] and one was deferred.[4]
James Dowd
Mark Selwyn
Jose Valenzuela
