Top Takeaways from Docket Navigator’s 2021 Year in Review

Intellectual Asset Management analyzed the 2021 Patent Litigation Year in Review report from Docket Navigator, which highlights top trends in patent litigation over the past year. Finnegan partners Frank DeCosta, Anthony Del Monaco, and Beth Ferrill were interviewed for their thoughts and predictions on the litigation trends broadly, as well as in relation to the International Trade Commission (ITC) and design patents.

Frank explained that the increase in patent litigations could be due to the COVID-19 pandemic:

“In the old days – meaning pre-pandemic – I think a lot of litigations filed would have a course of activity. There would be open negotiations between the principals. It just seems like with the pandemic the way it is and traveling being difficult, the cycle is cut out of the dispute. Folks are saying, ‘Let’s go to court.’”

The report also showed that the Northern District of Illinois had the highest rate of patentee victories in 2021, due to a large counterfeit enforcement campaign utilizing design patents. Beth explained the trend in fighting counterfeits with design patent litigation began in Northern Illinois and is making its way to federal courts in Florida and Central California. She said, “It speaks to the problem we have in the US with fighting counterfeits.”

Compared to 2020, the ITC saw slightly fewer cases but experienced a 35% increase in patent accusations and 42% increase in claim constructions. Anthony believes the increase in ITC filings in 2020 can be traced to the NHK-Fintiv discretionary denials at the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office. He stated, “A lot of folks are looking at the ITC, similar to the Western District of Texas. Cases are not going to slow down or be stayed because of an inter partes review. It has been one of the biggest reasons for the uptick.”

He added that the types of technology being asserted at the ITC can lend to companies filing cases involving multiple patents, also contributing to the spike in ITC patent accusations:

“In my own opinion, from what I have seen, it seems that parties are going into cases with more patents than they used to. I see more of three, four and five patent cases than there were before.”

Anthony expects the increase in ITC litigation involving trade secrets to continue in 2022. He said, “It is a good forum for those types of cases, especially with the type of discovery you can obtain.”

Read “Top Takeaways from Docket Navigator’s 2021 Year in Review”