Lex Machina announces the release of its Antitrust Litigation Report. In analyzing over 9,000 Antitrust cases included in Lex Machina’s database, practitioners can gain new information and plan their litigation strategy accordingly. Antitrust litigation is a complex and unique area of law and this analytical review showcases customized insights that supplement traditional research and accumulated experience. Highlights include: For antitrust cases terminating between 2016 and 2018, the median time to reach summary judgement was 2.5 years, and time to trial was three years. In Contested DOJ/FTC Enforcement cases, the median time to termination was only 127 days. Judge Cynthia M. Rufe (E.D.Pa.) and Judge Marianne O. Battani (E.D.Mich.) oversaw the most antitrust cases filed between 2016 and 2018 (249 cases and 139 cases respectively). The top plaintiff in Antitrust cases filed between 2016 and 2018 was FWK Holdings, LLC. FWK Holdings, LLC is a predecessor in interest for a now defunct pharmaceutical wholesaler claiming injury based on anticompetitive behavior by generic drug manufacturers. In 2018, federal courts approved over $3.6 billion in class action settlement damages. They also awarded over $515 million in antitrust violation damages and over $117 million in enhanced damages. Nearly $4.3 billion total damages were awarded [...]
Lex Machina released its annual Patent Litigation Report. This is a comprehensive report with data across the entire Patent module including patent litigation in federal district court and administrative hearings before the Patent Trial and Appeal Board (PTAB). This report also includes Hatch-Waxman/ANDA trends as well as those involving High Volume Plaintiffs (plaintiffs who have filed more than ten cases in a single year). The Patent Litigation Report analyzes filing trends, key decisions and timing metrics, as well as damages and other data. It shows top districts by case filings and percentage, top parties and law firms, and damages metrics including top jury awards. It also includes PTAB filings, trends in instituted and final written decisions, and top PTAB law firms. Highlights include: As an effect of T.C. Heartland, the Eastern District of Texas is no longer the top venue for patent litigation. It has moved to second place behind the District of Delaware. Juul Labs, along with one of their claim defendants, The Electric Tobacconist, LLC, joined the most active parties list in 2018 and are members of the nicotine vaping industry. In 2018, PTAB saw the fewest institution decisions since 2014 and the fewest overall trials terminated since [...]
This is a follow up post to an earlier discussion of the Supreme Court’s venue-altering decision. One year later, it is clear that there is a significant shift in where patent cases are being filed, with many more cases in Delaware since TC Heartland narrowed the rules for venue. Texas, by contrast, has seen a significant drop in filings, but is still a favored arena for some plaintiffs. For the time being, Texas judges continue to have a significant impact on the patent litigation landscape.
In the final quarter of 2017, a total of 981 patent cases were filed in U.S. District Courts, a 1.3% decrease over the previous quarter’s total of 994 cases. Cases filed in the calendar year 2017 (4,057 cases) represent a decline of 10.3% over 2016 (with 4,529 cases). Despite the decline, Figure 2 shows that 2017 continues the pattern of relatively consistent monthly totals that has persisted since the dramatic spike in 2015 (caused by the end of Form 18).
This blog post focuses specifically on patent litigation trends; for a broader discussion of other litigation trends in Q3, see our update here. On May 22, 2017, the Supreme Court issued its opinion in T.C. Heartland, holding unanimously that, under 28 U.S.C. § 1400(b) (the statute governing venue in patent suits), a domestic corporation “resides” only in its state of incorporation. Since that landmark decision, patent case filings trends have responded dramatically: the number of cases filed in the Eastern District of Texas has significantly declined and been overtaken by the number of cases filed in the District of Delaware. Fig. 1: Top districts by patent cases filed 2014-2017 Q3 Looking at a window of 90 days on either side of the T.C. Heartland, the change is stark. Before T.C. Heartland more than twice as many cases were filed in E.D. Tex. as D. Del.; but afterwards, it’s less than half. The number of cases filed outside of the top two districts is very similar. Fig. 2: Cases filed 90 days before and after T.C. Heartland Viewing the filing numbers on a week-by-week basis shows that the trend towards Delaware is not the result of a single period of [...]
For a more in-depth consideration of patent litigation trends around the Supreme Court’s landmark T.C. Heartland ruling, see this companion post. 995 patent cases were filed in the third quarter of 2017, a 12.3% decrease from the number of cases filed in last quarter. A drop from the second to third quarter has occurred in each of the past 4 years. Relative to the number of cases filed in 2016 through the third quarter, filings in 2017 are down 8.4%.
1,138 patent cases were filed in the second quarter of 2017, a 18% increase over number of cases filed in the first quarter of 2017. A similar increase from the first to second quarter has happened in each of the previous 4 years. Although the number of cases filed in the first quarter of 2017 was one of the lowest in the last 5 years, the first half of 2017 only trails 2016’s first half by 7%.
On Monday, May 22, 2017, the Supreme Court issued a slip opinion in the case TC Heartland LLC v. Kraft Foods Group LLC (Dkt. No. 16-341). The court unanimously* held that, under 28 U.S.C. § 1400(b) (the statute governing venue in patent suits), a domestic corporation “resides” only in its state of incorporation, consistent with its ruling in an earlier case, Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222 (1957). The Court rejected arguments that the general venue statute, 28 U.S.C. § 1391(c), which was amended post-Fourco and twice since § 1400, overrode the definition of residence in § 1400(b) with a more expansive one that made residence coextensive with personal jurisdiction. In doing so, the Court overruled the Federal Circuit’s decision in VE Holding Corp. v. Johnson Gas Appliance Co., 917 F. 2d 1574 (1990). * Justice Gorsuch did not participate in the decision. What Does That Mean and What Did TC Heartland Change? Why is a seemingly technical matter of statutory interpretation so significant? Before this decision, a plaintiff looking to sue a corporation for infringing its patent could choose any jurisdiction where the defendant did significant business. Large corporations doing business all over the [...]
Lex Machina Q1 2017 Litigation Update Patent litigation District Court 938 patent cases were filed in the first quarter of 2017. This was the lowest per-quarter filings of any quarter since 2011 Q3 (although just barely - there were 963 cases filed in Q1 of 2016). From last year’s average of 1130 cases per quarter, Q1 is down about 17%. Despite the low volume, case filings rose month-by-month during the first quarter of 2017 (see Fig. 2), and remain within the pattern established in 2016. Historically, the first quarter has often been lower than the year’s final average. The dramatic spike in 2015, apparent in Figure 2, was caused by the end of Form 18. Fig. 1: Patent cases filed, 2011 - 2017 Q1, by quarter Fig. 2: Patent cases filed, 2014 - 2017 Q1, by month More patent cases (33% of those filed in 2017 Q1) were filed in the Eastern District of Texas than in any other jurisdiction. The percentage of patent litigation in the Eastern District of Texas had been increasing during the course of 2016, from 30% in the first quarter to 41% in the fourth quarter. The District of Delaware remained the [...]
Patent Litigation District Court In the final quarter of 2016, plaintiffs filed 1,140 patent cases, bringing the total for 2016 to 4,520 patent cases. The fourth quarter represents a slight increase over the third quarter’s 1,126 cases, but overall litigation in 2016 has declined by a moderate 22% from 2015 (when 5,823 cases were filed). Month by month, 2016 has been relatively consistent compared to the dramatic spike in 2015 caused by the end of Form 18. Fig. 1: Patent cases filed, 2011 - 2016, by quarter Fig. 2: Patent cases filed, 2011-2016, by year Fig. 3: Patent cases filed, 2014 - 2016, by month The majority of patent litigation filed in 2016 (36.4% of cases) was filed in the Eastern District of Texas. The District of Delaware remained the second most frequently used jurisdiction, with just over 10% of cases filed in 2016. The percentage of cases filed in the Eastern District of Texas has also been increasing, from around 30% in the first quarter, to 40% in the fourth quarter of 2016. Fig. 4: Top districts by patent cases filed in 2016 Fig. 5: Eastern District of Texas and District of Delaware, 2014-2016 by quarter To gain [...]