Law360 interviewed Finnegan partner and leader of the firm’s litigation section, Frank DeCosta, to discuss patent litigation trends and cases to watch in 2021.
The year 2020 presented various changes and challenges to the patent litigation process. In 2021, the courts will be playing catch-up as a result of trial timelines that were affected by the pandemic. Frank said, “The judges we're dealing with are triple tracking, quadruple tracking the trial schedule for January. [Judges have said] once we start getting into calendar year 2021, 'I literally am putting three or four trials on top of each other.”
Another trend practitioners will be watching is the aftermath of the Patent Trial and Appeal Board (PTAB)’s precedential decision in Apple Inc. v. Fintiv. The decision allows the PTAB to weigh the advanced stage of parallel litigation in other courts when deciding whether to institute review. This has caused patent owners to sue in courts that move quickly in hopes of shutting down a PTAB challenge. Frank said, “We've always had these timing issues ... with the interplay between IPRs and district court filings, but now we have this third dimension of time that creates another ticking time bomb where you're choosing a jurisdiction as a patent holder that relates to the Fintiv factors, [and as a] challenger of the patents, you're also making sure you have to accelerate your petition process.”
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