According to Lex Machina’s 2021 Patent Litigation Report, the number of patent litigation cases filed in 2020 increased for the first time since 2015. The report also notes that fewer patents are being reviewed by the Patent Trial and Appeal Board (PTAB) because in light of Fintiv, the board has been turning away patent challenges if the parallel district court litigation is likely to be decided around the time the PTAB’s final written decision is issued. Law360 interviewed Finnegan partner Laura Masurovsky for her insight into the PTAB denying institution and the uptick in patent litigation cases.
Laura said, “The fact that there are more discretionary denials of institutions by the PTAB is pushing a number of clients to say, 'Let's pull the trigger now,' because you may get an advantage. The other side may not be ready to file [at the] PTAB, and the further along you can say that your district court case is toward resolution or how quickly it will get to resolution, that may also bear on either the PTAB denying institution under its discretionary authority, or the district court saying, 'I don't think we need a stay anyway.'"
Regarding the cause of the increase in patent litigation, Laura said, “People who are seeing declines in certain areas of economic growth look for other ways to monetize their assets or get returns on their investment, or as a hedge against some of what may be happening to their other investments. Those that are feeling some of the pinch may use litigation as a backstop for what they are not able to succeed in in other arenas."
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