Patent litigation decreased substantially in the third quarter of this year, and some claim that the Supreme Court’s Alice v CLS Bank decision on June 19 is the primary cause. Indeed, data released by Lex Machina shows that there has been a 40% decrease in patent suits in September 2014 compared to the same month the previous year. Some, like Professor Mark Lemley, believe this decrease is due primarily to the Supreme Court’s Alice v CLS Bank decision, which has caused many non-practicing entities (NPEs) to cut back their litigation.
However, there are other potential influences which may be contributing to this downturn. For example, the popularity of new proceedings before the Patent Trial and Appeal Board (PTAB) has caused many plaintiffs to think twice about asserting their patents. A recent statistical survey found that, among Inter Partes Review proceedings that reach a final decision on the merits, all claims are invalidated in some 77% of the cases.
In addition, plaintiffs may be continuing to hold off on filing litigation in order to see how the America Invents Act reforms develop. The 2013 statistics may also be inflated for this reason, as plaintiffs expedited their awaiting cases in 2013 before the new changes set in.
