The story of patent litigation in 2022 was one of ongoing stability—at least, for NPEs. This past year, NPE filing levels were virtually the same as 2021, continuing a long-term trend, with Q4 unchanged as well. NPEs maintained that status quo despite upheavals in two of the nation's top patent venues: a West Texas order that threatens the dominance of District Judge Alan D. Albright, and new disclosure requirements in the courtroom of Delaware Chief Judge Colm F. Connolly that have caused trouble for some familiar plaintiffs. However, operating company plaintiffs named 12% fewer defendants in 2022, a drop that was even steeper when excluding cases targeting generic drugmakers.
Meanwhile, the Patent Trial and Appeal Board (PTAB) saw a variety of significant changes this past year from USPTO Director Kathi Vidal, who hit the ground running after her April confirmation. At 2022's close, Vidal characterized her reforms of the PTAB's discretionary denial practices as promoting "certainty and clarity" as institution rates in America Invents Act (AIA) review trials continued to climb. Vidal also took increasingly pointed steps to deter misconduct in AIA reviews, imposing sanctions on a pair of third-party petitioners for abusing the inter partes review (IPR) process—and hinted that further PTAB reforms could come as soon as the end of Q1.
2022 was also a landmark year for issues related to standard essential patent (SEP) litigation. In the US, the Biden administration withdrew a pro-injunction SEP policy without replacing it, leaving a void that could be filled by a newly emboldened Federal Trade Commission (FTC). Courts in the UK have also continued to clarify rules on injunctive relief in litigation over fair, reasonable, and nondiscriminatory (FRAND) licensing, while the European Commission has pushed forward on its complaint against China over anti-suit injunctions (ASIs) in multinational SEP disputes.
Finally, NPEs continued to amass US patents throughout 2022, including several entities that began asserting their newly acquired assets in Q4—some with third-party backing. Investments kept pouring into the litigation finance industry last year, including some notable large fundraises focused specifically on patent litigation. As stakeholders debated disclosure requirements for funding sources, a prominent trade group also raised national security concerns over transparency into litigation funding.
Originally published: January 10, 2023
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