The Eastern District of Texas (E.D. Tx.) is responsible for almost half of all patent suits filed in 2015, and one judge, Rodney Gilstrap, is handling 80% of the cases, 1,686 of them.
This is part of the findings of the latest “Patent Litigation Year in Review” just out from IP analytics firm Lex Machina.
The 2,540 cases filed in E.D. Tx. in 2015 represent 43.7% of all cases filed. In 2014, that number was 28%, from which there was a 56% increase.
According to Brian Howard, a legal data scientist with Lex Machina, “at least part of the increase in E.D. Tx. suits is a result of high volume filers, those with ten or more cases, who either are located in Texas or may find E.D. Tx. courts and juries more hospitable.”
E.D. Tx. saw a 78.0% increase (1,113) in cases, and N.D. Tx. 84.1% (54), while D. Del. had a 42.4% decrease in cases (401).
Information about top plaintiffs who are mass filers, some of whom give NPEs a bad name, is difficult to obtain. One of them eDekka, LLC, was responsible for the most suits filed in 2015. Edekka was plaintiff on 101 suits in 2015. In December the E.D. Tx. cited eDekka for attorney’s fees.
The Court concluded that “eDekka repeatedly offered insupportable arguments on behalf of an obviously weak patent” and questioned whether eDekka thoroughly evaluated its claims against relevant law before initiating a large number of lawsuits.
Top defendants in 2015 according to Lex Machina included, in addition to Samsung and Apple, four pharmaceutical companies, Mylan, Activis, Amneal and Apotex. This is more than in the past two years, due largely to ANDAs, Abbreviated New Drug Applications for patents on U.S. generic drugs or bio-equivalents for an existing licensed medication. Howard said that these cases are often more about procedure than current or past infringement and are often settled.
Reasonable Royalties Rule
Median damages awards were up significantly in 2015 to $5,443,485 in 29 cases calculated on reasonable royalties, a more than 17-fold increase from 2013 when the median was $311,379. Lost profits awards were down to just $423,079 in five cases. In 2013 they were $5.5 million (see figure 47 on page 28 of the report).
Of the 2,488 IPRs filed since September 16, 2012, the start of the PTAB reviews, to the end of 2015, better than one in three were either denied institution (22%) or settled (13%). In 3%, all claims were affirmed. Of those instituted, all claims were found unpatentable 18% of the time. Only 0.1% of of the instituted petitions were claims amended.
Prior to institution, petitions were either settled or procedurally dismissed 28% of the time.
For a personal copy of the full Lex Machina 2015 litigation report go here.
To register for a live webinar to review the highlights of the report on March 24, go here.
Image source: Lex Machina
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