The third quarter of 2021 saw NPEs file 18.1% more patent litigation compared to the same period in 2020. Year-to-date NPE activity is also up significantly, even when excluding the impact of certain file-and-settle litigation.
However, the Patent Trial and Appeal Board (PTAB) now finds itself at an inflection point. Rule changes allowing the PTAB to deny institution in America Invents Act (AIA) trials based on the status of parallel district court litigation have led some defendants to instead file more validity challenges as ex parte reexaminations, but a recent appellate ruling might make that a more difficult proposition. That said, defendants also received some good news in the form of a legislative reform proposal that could walk back many of the changes that have made the PTAB a more challenging venue for validity challenges over the past few years.
Change also appears to be on the horizon for standard essential patent (SEP) licensing, as the Biden administration released some long-awaited details on its policy toward antitrust enforcement in disputes over fair, reasonable, and nondiscriminatory (FRAND) licensing, while a parallel policy initiative was announced in Europe. Moreover, China's highest court has upped the ante in the ongoing debate over cross-jurisdictional SEP licensing disputes, confirming that Chinese courts may set the terms of global licenses—a move that might encourage races to the courthouse.
Finally, prolific patent monetization firm IP Edge LLC took its first case to trial before the International Trade Commission (ITC) in the third quarter, also joining a variety of other familiar plaintiffs in acquiring more patents of operating company origin throughout Q3—as others asserted assets divested by Intellectual Ventures LLC. The third quarter also saw at least one more law firm join forces with a litigation funder, yet another sign of the growing popularity—and acceptance—of third-party funding.
Click here to continue reading . . ..
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
