Unified Report: No Rest for Patent Filings in a Pandemic

The Western District of Texas continues to explode in popularity with non-practicing entities (NPEs); an operating company is the most prolific filer of patent disputes in district court for the first time; and Patent Trial and Appeal Board (PTAB) filings are up by 16%, found Unified Patents’ Q3 2020 Patent Dispute Report.

Despite the pandemic, both district court and PTAB filings are up, with combined patent disputes on track to increase by 12.7% over 2019, said the report. It added: “The third quarter saw a 13.7% decrease in litigation from last quarter, but assuming this stays the same, 2020 litigation is set to reach its highest level since 2017, largely driven by an increase in NPE litigation.”

There were 1,150 PTAB filings in Q3 2020, with 498 of those brought by NPEs. The rate at which the Board institutes petitions dropped by 3% over last year, to 57.1%, but that was up slightly over Q2 2020.

The high-tech industry dominates in both PTAB and district court filings, accounting for 65% of new patent cases overall. Of those disputes, 87.6% are brought by NPEs. In district court, however, JUUL Labs, the American electronic cigarette company, became the first operating company to be the most prolific asserting entity in a single quarter.

Headed West

Earlier this year, Unified’s Jonathan Stroud reported that the Western District of Texas was on track to surpass the District of Delaware in total filings, and that trend persists. The WD of TX’s 512 NPE filings alone nearly surpass Delaware’s total of 529 filings. With operating company filings, the WD of TX has had 596 filings this quarter. The west Texas court’s popularity has surged for a number of reasons, including Judge Alan Albright’s proactive approach to patent cases. Stroud explained in April:

With an aggressive filing schedule, streamlined Markman proceedings, and patent expertise, it isn’t much of a leap to say that it’s become an attractive forum in which to file.  Add to that the relative lack of TC Heartland problems and the (as of now) lack of docket congestion there (as compared to Delaware, where trial times have been ticking up under the strain), and you can see why parties might be driven to file there rather than anywhere else—particularly those looking to go to trial or drive quick settlements.

Top Named Companies

Google was the top named defendant in district court, with F5 Networks and Apple tied for second.

At the PTAB, Samsung was the most frequent petitioner, with 58 petitions this quarter, followed by Amazon and Apple. NPEs were the most challenged patent owners at the PTAB, with Ultravision Technologies in first place, followed by Clear Imaging Research and Masimo.

Assuming these trends continue, district court litigation is predicted to be at its highest rates since 2016 by the end of 2020, and PTAB filings will be at their highest since 2018.

According to Unified’s methodology, the report includes all district court and PTAB litigations between January 1, 2015 and September 31, 2020 and eliminates “mistaken, duplicative, or changes in venue filings, hence the totals may vary slightly compared to other reporting entities.”