Every quarter, RPX publishes its take on trends impacting patent litigation and the patent marketplace. Last week's Q3 in Review reveals that patent disputes remain relatively unaffected by COVID-19—even increasing despite the broader economic downturn. The third quarter also saw the Western District of Texas continue to grow in popularity as a patent venue, seeing the most overall patent litigation and NPE filings in particular, as District Judge Alan D. Albright cleared the way for jury trials to resume—joining other top districts in doing so.

RPX data further reveal a massive and unprecedented spike in district court patent litigation asserting purely design patents, comprising more than 1,670 defendants added—or 67.8% of the total amount of litigation filed in Q3. That said, excluding cases asserting only design patents, the data show that the numbers still rose in the third quarter compared to the same period last year: 795 defendants were added to patent campaigns in Q3 2020, an increase of 3.9% over Q3 2019 (during which 765 defendants were added), though filings decreased by 22.4% from Q2 2020 (during which 1,024 defendants were added). Third-quarter 2020 filing levels were below the Q3 2016-2019 average by 8.9%.

For their part, NPEs filed 5.5% more patent litigation than they did in Q3 2019, while operating companies brought 1.1% more litigation than in that same prior quarter.

Defendants Added to Litigation Campaigns by Quarter


In addition, the Western District of Texas remained the most popular venue for overall patent litigation (i.e., with no filter for plaintiff type) and for litigation filed by NPEs, also rising to second place for operating company litigation. The District of Delaware, meanwhile, was the top operating company venue and the number-two district for both overall and NPE litigation. The Eastern District of Texas—the favored venue of NPEs prior to the Supreme Court's decision in TC Heartland—took third place for overall and NPE litigation but was in fifth place for operating company litigation.

Top Patent Litigation Districts in Q3 2020 by Defendants Added


Meanwhile, RPX has continued to track how the nation's most popular patent venues have handled jury trials during the pandemic. The Eastern District of Texas was the first to resume patent jury trials, with District Judge Rodney Gilstrap holding the nation's first such trial in August in PanOptis v. Apple following a debate over the public safety consequences of such a reopening. Now the Western District of Texas has followed suit, with District Judge Alan D. Albright launching his district's first patent jury trial during the pandemic—not to mention, his first since assuming the bench in late 2018—in MV3 Partners v. Roku. Other top districts may soon reopen for jury trials as well: the District of Delaware recently loosened its COVID-19 restrictions, greenlighting the resumption of jury trials with certain limitations; while the Northern District of California has scheduled a trial in November following the expiration of its district-wide continuance of jury trials.

Other developments during the third quarter contributed to a litigation climate that, by and large, tended to favor patent owners. This includes a new set of PTAB rules that may narrow the IPR filing window for district court defendants, sparking debate among stakeholders—not to mention litigation challenging those rules.

Additionally, SEP owners saw favorable rulings in the world's top FRAND venues, and third-party litigation funding, Intellectual Ventures LLC divestitures, and operating company patents in NPE hands stood out as strong drivers of litigation during the quarter. See RPX's third-quarter review for more on these and other trends.

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