Steve Moore

For those of you that do ANDA litigation, as well as other types of patent litigation, you know that ANDA litigation is very different. How a judge reacts to a particular motion in ANDA litigation is not necessarily how he or she might deal with the same motion in an electrical, mechanical or software case. Because of this substantial difference, Lex Machina decided to separately tag over 2,500 ANDA cases filed since January 1, 2000. Thus, for the first time, litigators can make decisions based solely on reviewing the ANDA cases that a specific judge has handled.

Congress is on the cusp of passing legislation that is said to be designed to control the so-called “patent troll.” Of course, as belatedly recognized by the person who came up with the moniker “troll” in 1993, Peter Detkin (former Assistant General Counsel at Intel at the time), the word “troll” is often in the eye of the beholder. Indeed nearly every litigator will tell you that term “troll” is commonly used against any opponent in a patent litigation suit, much as Arthur R. Miller asserted that “a frivolous lawsuit is any case brought against your client, and litigation abuse is anything the opposing lawyer is doing.” Miller, Simplified Pleading, Meaningful Days in Court and Trial on the Merits: Reflections on the Deformation of Federal Practice, 88 NYU Law Rev. 286, 302 (2013).

Nearly 44% of all patents on which petitions were filed against are patents being held by large entities. While this is a significant increase from the earliest days of IPR where nearly 90% of all patent challenges were waged against patent owned by small entities, small entities are still carrying a massively disproportionate load of the challenges particularly when one takes into account that at any time they comprise only 20% of all the patents in force… the increase in IPR’s against patents held by large entities appears to be almost entirely due to large entities challenging other large entities, with little increased participation by small entities in the IPR process being noted.

At this time of year we often see many prognostications of what the future holds. From the prospective of the small entity patentee we see big changes in store particularly as some in Congress seem hell-bent on amending the patent statutes once more. These changes are being pushed through without any real consideration for the impact of the changes on patents held by universities, research institutes, small and medium sized companies, emerging companies, independent inventors and new entrepreneurs.