PublishedJanuary 25, 2024

Unified Patents’ 2023 Trends in Patent Litigation

From the U.S. Patent and Trademark Office’s (USPTO) Advanced Notice of Proposed Rulemaking (ANPRM) to new revelations about litigation investment entities, and the launch of the Unified Patent Court (UPC) – 2023 was an eventful year for patent policy, both in the United States and abroad. 

Unified Patent’s 2023 Dispute Report highlights the past year’s key trends in patent disputes. The analysis found that there was a slight decrease in district court cases, largely due to the non-practicing entity (NPE) IP Edge’s absence, and a decline in filings at the Patent Trial and Appeal Board (PTAB), presumably due to the ANPRM and the uncertainty around which changes would go into effect and when.

District court litigation was down 12.5% in 2023, but NPE activity still accounted for 58% of all lawsuits, on par with the 5-year average. Due to District of Delaware Chief Judge Colm Connolly’s investigation into IP Edge and his decision to refer the firm and its lawyers to the U.S. Department of Justice, the Patent and Trademark Office, and state bar regulators, the notorious NPE was absent this year. But, in its stead, litigation investment entities like Jeffrey M. Gross and Intellectual Ventures increased their activity – accounting for a combined 226 suits in 2023.

While Judge Connolly’s transparency measures didn’t have much of an impact on the proportion of cases filed by NPEs nationally, it did influence where NPE cases were filed. The Eastern District of Texas took the lead this year with 522 NPE cases filed, while the Western District of Texas was not far behind with a total of 467 cases. The Delaware District Court came in a distant third place, down to 157 NPEs filing cases. 

At the PTAB, filings decreased this year, down 11.4% compared to 2022. This decline was likely due to uncertainty around the USPTO’s ANPRM, which, as noted previously on Patent Progress, faced overwhelming public opposition. 

Unsurprisingly, high-tech companies continue to comprise the majority of defendants in district court and at the PTAB, at 58% and 68% respectively. In district court, NPEs targeted high-tech companies 95% of the time, while non-NPEs targeted high-tech companies only 14% of the time. NPE activity in district court naturally carried over to the PTAB, where more than half of all America Invents Act (AIA) challenges – 54% – involved high-tech companies petitioning NPE-controlled patents. 

Reexaminations at the USPTO were up 6.7% year-over-year. Again, NPE-controlled patents featured prominently in these proceedings as they controlled 50% of all patents challenged. The reexamination uptick and PTAB decline are intuitive in the context of 2023’s uncertain rulemaking environment at the USPTO, where significant changes to inter partes review (IPR) were under consideration.

2023 was also an eventful year for patent policy in the European Union. After a slow start over the summer, the UPC saw a steady increase in cases, especially those surrounding standard essential patents (SEPs), where by the end of the year there were a total of 155.

Unified Patents regularly produces analysis on district court patent litigation, proceedings at the USPTO, and developments at the UPC, but to further explore the data and for more in-depth information, please visit Unified’s Portal.

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Jonathan Stroud

General Counsel, Unified Patents

Mr. Stroud manages Unified Patents’ legal and corporate work, with a focus on Patent Trial and Appeal Board (PTAB), district court, and appellate litigation, contracting, general corporate matters, and settlement negotiations. He regularly teaches, speaks, and writes about patent and administrative law.

Previously, Mr. Stroud was a patent attorney at Finnegan, Henderson, Farabow, Garrett and Dunner LLP, where he was involved in some of the earliest post-grant review work. Before that, he examined patents on implantable medical devices at the U.S. Patent and Trademark Office (USPTO).

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