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Q3 Patent Litigation Update: U.S. Patent Litigation Decreases

Bijal Vakil and Will Wray of our global Technology practice comment on the recent decline in new U.S. patent lawsuits.

U.S. patent litigation has declined significantly. From 2012 through 2022, plaintiffs filed, on average, 4,700 patent suits. This year, expect to see almost a third less than this historical average.

Landscape image of District Court Patent Infringement Suits Chart
Although the number of suits has fallen substantially, plaintiffs’ preferred venues have not changed. It will come as no surprise to those who practice in this field that the Western District of Texas remains the top forum this year, with the Eastern District of Texas in a close second. It seems likely, however, that the Eastern District of Texas will overtake the Western District this year or next. Chief Judge Garcia’s July 2022 order requiring the random assignment of patent suits among twelve Western District judges seems to have been an inflection point.
Landscape image of New Case Filings Chart

The District of Delaware is the plaintiffs’ third most popular forum.  Unlike the Texas forums, the District of Delaware is preferred primarily by practicing entities.  New rules requiring discovery of litigation financing that apply in some cases has likely caused many non-practicing litigants to initiate suits elsewhere.  

Plaintiffs have also moved away from the Northern District of California (home to many technology companies).  This year, expect only around 120 case filings in the district, compared with a five-year high of almost 330 in 2018.

Landscape image of Number of Patent Suits Pending in ND Cal Chart

Beyond district court litigation, patent litigants have continued to use ITC investigations (also down this year) and post-issuance proceedings before the PTAB.  The USPTO reported 1,320 IPR petitions in the year ending Sept. 30, 2022, and is on track for about 1,250 this year.  This represents a substantial decline from the average of 1,578 filings from FY2017-FY2021.

Patent litigations involving hardware and software continue to dominate patent litigation.  But this year, continuing a trend from prior years, the number of healthcare-related district court infringement suits has increased, although without any attendant increase in the number of biological/pharmaceutical-related IPRs. 

We expect that the lull in new patent litigation will not outlast 2023.  We believe that the decline was partly driven by temporary conditions—financial and legal—whose effect is already waning.  In addition, plaintiffs have obtained some significant jury verdicts in their favor this year, which may spur further litigation.