2014 Texas Patent Litigation Comment

For those who thought the America Invents Act would not have an impact on patent litigation, think again. A great resource of patent litigation statistics is at Docket Navigator. Their “Year in Review” presents some compelling trends from 2014 and further back over the years of what has happened in the patent litigation world.

This is especially so for Texas patent litigation. Whereas the Eastern District of Texas used to be a hot-bed of patent litigation–a “hellhole” for many defendants–that does not appear to be the case at all any more. Granted, a lot more cases are filed there than many other places, but it is not even in the top five jurisdictions for patent lawsuit filings, having been overtaken by the California jurisdictions in San Francisco, Los Angeles and San Diego, and by places like Delaware and the Northern District of Virginia–both of which are home to a lot of tech companies.

Not unexpectedly, the new board of patent appeals (The Patent Trial and Appeals Board) has seen a surge in activity as Defendants realize that a quick-and-easy way to put a case on ice is to dump it into re-examination and/or have it reviewed by the patent appellate board.  Whether that is a successful strategy remains to be seen. One could see that move backfiring. A patent that survives the PTAB is highly likely to get far along in the case in court as many defenses might be collaterally estopped, if not res judicata, from being re litigated at trial. The PTAB is a closed session, a black box. We’ll keep tracking the outcome.