Recent Changes to the Patent Litigation Landscape and Predictions for the Future. June 12, 2018

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1 Recent Changes to the Patent Litigation Landscape and Predictions for the Future June 12, 2018

2 Rob Reckers Fiona Bell 2

3 Trends in Patent Litigation: Cases Filed 7,000 6,000 5,000 4,000 3,000 2,000 1, Data source: Lex Machina Patent Litigation Year in Review

4 Concerns Over the Quality of Asserted Patents Older patents from failed commercial ventures, purchased by litigation-focused investors Patents of questionable scope and precision High standards and expenses associated with proving a bad patent was improperly granted 4

5 Concerns Over the Plaintiffs Tactics and Venue Source: Bloomberg News, Patent Trolls: What Are These Hideous Creatures, May 27,

6 Congress Passes the America Invents Act (2011) Creates new avenues for challenging bad patents Supreme Court Issues Alice Decision (2014) Redefines what can be patented Supreme Court Issues T.C. Heartland Decision (2017) Redefines venue rules What Happened Next? 6

7 7,000 Effect on Patent Litigation: Decrease in Cases Filed 6,000 5,000 4,000 3,000 2,000 1, Data source: Lex Machina Patent Litigation Year in Review

8 Effect on Patent Litigation: Shift Away from Eastern District of Texas % 40% E.D. Tex. D. Del. 51% 15% 25% C.D. Cal. 5% 14% Other 8% Data Source: Lex Machina; LEFT: Patent cases filed June 1, 2016 May 1, 2017 (pre-tc Heartland); RIGHT: Patent cases filed May 23, Jan (post- TC Heartland). 8

9 Basic Patent Law Concepts 9

10 What is a Patent? 10

11 What is a Patent? 11

12 How Do You Get A Patent? What is claimed is

13 Patent Basics $$$ Patent Rights 13

14

15 Patent Basics Patent Rights 15

16 Defense: Patent Is Invalid Invention must be: New and non-obvious Directed to patent eligible subject matter 16

17 Example A food product comprising: 2 slices of bread, A layer of nut butter, and A layer of fruit jelly, Wherein the nut-butter and fruit jelly are located between the two slices of bread. 17

18 Summary Patent = property right to invention Patent Owner can sue if invention used without permission Defense: patent is invalid 18

19 Recent Changes in the Law: New Avenues for Challenging Bad Patents 19

20 Lawsuit: District Court Patent Owner - Plaintiff Respondent Defendant Petitioner Inter Partes Review: U.S.P.T.O 20

21 Timeline Litigation vs. IPR IPR Petition IPR Final Written Decision < 6 months < 12 months Complaint 35 U.S.C IPR Institution Decision District Court Trial 21

22 Litigation vs. IPR X 3 Clear and Convincing Narrow Preponderance Broad 35 U.S.C. 311; Leahy-Smith America Invents Act, 125 Stat. 284, (codified as amended 35 U.S.C. Chap. 31); 37 C.F.R. pt. 42(B). 22

23 IPR Outcomes Favor Defendants Petition Decision Final Decision 30% 70% 19% 14% 67% Instituted Denied Invalid Upheld Mixed Result Source: Lex Machina analytics; data for concluded/ terminated IPR trials, from through

24 IPRs Have Chilling Effect on Litigation 7,000 6,000 5,000 4,000 3,000 2,000 1, Data source: Lex Machina Patent Litigation Year in Review

25 IPRs Have Chilling Effect on Litigation # of Filings IPR District Court Data Source: Lex Machina analytics 25

26 Recent Changes in the Law: Redefining What is Patent Eligible Subject Matter 26

27 Patent Eligible Subject Matter 35 U.S.C. 101: Whoever invents or discovers any new and useful [1] process, [2] machine, [3] manufacture, or [4] composition of matter, or any new and useful improvement thereof, may obtain a patent therefor 35 U.S.C

28 Patent Eligible Subject Matter Non-patentable subject matter - judicial exceptions: Laws of nature Naturally occurring products Abstract ideas They are the basic tools of scientific and technological work and thus the grant of a patent might tend to impede innovation more than it would tend to promote it. 35 U.S.C. 101 ; Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1293 (2012). 28

29 101 Supreme Court Decisions 1. Bilski v. Kappos, 561 U.S. 593 (2010) Method for risk hedging was a patent-ineligible abstract idea. 2. Mayo Collaborative Services v. Prometheus Labs., Inc., 132 S. Ct (2012) Process of calibrating dosage of a drug is patent-ineligible law of nature 3. Alice Corp. Pty. Ltd. v. CLS Bank Int l, 134 S. Ct (2014) Computerized system for managing escrow debts Abstract idea + generic computing = not patentable 29

30 Patents Held Invalid Under Data source: Lex Machina Patent Litigation Year in Review

31 7,000 Increase in Patents Held Invalid Under 101 Results in Decrease in Patent Litigation 6,000 5,000 4,000 3,000 2,000 1, Data source: Lex Machina Patent Litigation Year in Review

32 The Impact of Alice District Courts: substantial number of software patents invalided under Alice Patent Office: stricter standards, many patent applications rejected in light of Alice Software patents issued today must demonstrate a true inventive concept. 32

33 Recent Changes in the Law: Venue Reforms 33

34 Patent Venue Statute Any civil action for patent infringement may be brought in the judicial district [1] where the defendant resides, or [2] where the defendant has committed acts of infringement and has a regular and established place of business. 28 U.S.C. 1400(b) 34

35 Patent Venue Statute Any civil action for patent infringement may be brought in the judicial district [1] where the defendant resides (i.e., state of incorporation), or [2] where the defendant has committed acts of infringement and has a regular and established place of business. 28 U.S.C. 1400(b) 35

36 Patent Venue Statute (Fed. Cir.) Any civil action for patent infringement may be brought in the judicial district [1] where the defendant resides (i.e., state of incorporation), (i.e., in any judicial district in which it is subject to personal jurisdiction ), or [2] where the defendant has committed acts of infringement and has a regular and established place of business. VE Holding Corp. v. Johnson Gas Appliance Co., 917 F. 2d 1574 (Fed. Cir. 1990) 36

37 Effect of VE Holding E.D. Tex. D. Del. 42% 40% C.D. Cal. Other 5% 14% Source: Lex Machina analytics; patent cases filed June 1, 2016 May 1, 2017 (pre-tc Heartland); 37

38 Why E.D. Tex? o Local patent rules o Low MSJ success rate o Speedy ( rocket docket ) o Jury pool o Large damages 38

39 Effect of VE Holding Source: thetimes.co.uk, April 28,

40 Effect of VE Holding Sourcse: thetimes.co.uk, April 28, 2015; Patents: Last Week Tonight with John Oliver (HBO), April 20,

41 Patent Venue Statute 2017 (S. Ct.) Any civil action for patent infringement may be brought in the judicial district [1] where the defendant resides (i.e., state of incorporation) (i.e., in any judicial district in which it is subject to personal jurisdiction ), or [2] where the defendant has committed acts of infringement and has a regular and established place of business. TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S.Ct (2017) 41

42 Effect of T.C. Heartland on Venue Before: After: 42% 40% E.D. Tex. D. Del. 51% 15% 25% C.D. Cal. 5% 14% Other 8% Source: Lex Machina; LEFT: Patent cases filed June 1, 2016 May 1, 2017 (pre-tc Heartland); RIGHT: Patent cases filed May 23, Jan (post- TC Heartland) 42

43 Recent Case Law Further Restricts Venue Options Defendant only resides in a single judicial district In re BigCommerce (Fed. Cir. May 15, 2018) Law regarding what is a regular and established place of business still developing In re Cray, 871 F.3d 1355 (Fed. Cir. Sept. 21, 2017) Burden is on plaintiff to prove venue is proper In re ZTE (USA) Inc., (Fed. Cir. May 14, 2018) 43

44 Forecast & Predictions 44

45 7,000 Forecast: Filings Will Remain Depressed 6,000 5,000 4,000 3,000 2,000 1, Data source: Lex Machina Patent Litigation Year in Review

46 The New Normal Petitions for Inter Partes Review 101 Challenges Venue other than E.D. Tex. 46

47 Law Continues to Evolve Law regarding 101 still developing Multiple Petitions for Certiorari Pending at S. Ct. Law regarding IPRs shifting Two recent S. Ct. decisions, more expected in future Law Regarding Venue Law regarding regular and established place of business continues to evolve 47

48 Record Numbers of Patents Continue to Issue 350, , , , , ,000 50, Data source: U.S.P.T.O website 48

49 Thank you Rob Reckers Fiona Bell 49

50 50

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