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The story of patent litigation in 2022 was one of ongoing
stability—at least, for NPEs. This past year, NPE filing
levels were virtually the same as 2021, continuing a long-term
trend, with Q4 unchanged as well. NPEs maintained that status quo
despite upheavals in two of the nation’s top patent venues: a
West Texas order that threatens the dominance of District Judge
Alan D. Albright, and new disclosure requirements in the courtroom
of Delaware Chief Judge Colm F. Connolly that have caused trouble
for some familiar plaintiffs. However, operating company plaintiffs
named 12% fewer defendants in 2022, a drop that was even steeper
when excluding cases targeting generic drugmakers.
Meanwhile, the Patent Trial and Appeal Board (PTAB) saw a
variety of significant changes this past year from USPTO Director
Kathi Vidal, who hit the ground running after her April
confirmation. At 2022’s close, Vidal characterized her reforms
of the PTAB’s discretionary denial practices as promoting
“certainty and clarity” as institution rates in America
Invents Act (AIA) review trials continued to climb. Vidal also took
increasingly pointed steps to deter misconduct in AIA reviews,
imposing sanctions on a pair of third-party petitioners for abusing
the inter partes review (IPR) process—and hinted
that further PTAB reforms could come as soon as the end of Q1.
2022 was also a landmark year for issues related to standard
essential patent (SEP) litigation. In the US, the Biden
administration withdrew a pro-injunction SEP policy without
replacing it, leaving a void that could be filled by a newly
emboldened Federal Trade Commission (FTC). Courts in the UK have
also continued to clarify rules on injunctive relief in litigation
over fair, reasonable, and nondiscriminatory (FRAND) licensing,
while the European Commission has pushed forward on its complaint
against China over anti-suit injunctions (ASIs) in multinational
SEP disputes.
Finally, NPEs continued to amass US patents throughout 2022,
including several entities that began asserting their newly
acquired assets in Q4—some with third-party backing.
Investments kept pouring into the litigation finance industry last
year, including some notable large fundraises focused specifically
on patent litigation. As stakeholders debated disclosure
requirements for funding sources, a prominent trade group also
raised national security concerns over transparency into litigation
funding.
Originally published: January 10, 2023
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