The impact of COVID-19 on patent litigation has been interesting to say the least. There is no doubt that (as of this writing at least) things are nowhere close to normal, either in terms of schedules or procedures in district courts around the country. For every judge that has tried to adhere to existing schedules — with some even going so far as to experiment with Zoom trials and the like — there are others that have thought it best to push deadlines out because of the pandemic. By and large, everyone — from jurists to court staff to lawyers and their clients — is trying their best in terms of dealing with the unprecedented challenges of the day. Yet in spite of the challenges to existing patent cases staying on schedule in district court, new patent case filings have apparently gone up over the past few months. Which may be an earlier harbinger of both NPEs and operating companies doing everything they can to generate revenue with their patents, including by filing cases against unwilling licensees earlier in the licensing lifecycle. We will see.
While the increased number of patent case filings in the midst of a pandemic might be a surprise to some, it should be less of a surprise that IPR activity has kept pace. How do we know? Thanks to a timely report by legal analytics firm Lex Machina, released as part of the firm’s “ongoing work to track the impact of COVID-19 on litigation.” In their new report “PTAB Activity During COVID-19,” Lex Machina “reviewed recent PTAB trial activity to examine how the COVID-19 pandemic shutdown has impacted this administrative law body.” Their findings are obviously of interest to anyone impacted by patent litigation — so for purposes of this column I wanted to focus on the three (idiosyncratic, as is my wont) takeaways I found most interesting from their findings. (If anyone is interested, I also put some investor-focused thoughts on the report on our Markman Advisors blog.)
First, IPR petition filings continue to act as a trailing indicator of the general level of patent litigation activity. Since new patent case filings have gone up during the pandemic, there is no surprise that IPR filings have kept pace to a certain extent. Sophisticated patent defendants continue to turn to IPR filings as a first-line defense to allegations of infringement against them. Moreover, the tumult in district court schedules due to COVID-19 appears to have put even more of a premium on defendants getting their IPRs filed early. Doing so allows defendants to make robust arguments early in the scheduling process that a stay is warranted; arguments that most likely would be well-received by a district court trying to triage its caseload as best as it can under the circumstances.
Second, the unique nature of IPR practice, both for lawyers and the PTAB, lends itself to minimal disruption due to the physical displacement engendered by the pandemic, at least in terms of lawyers needing to work remotely and the shuttering of courthouse facilities. For one, IPRs are heavily front-loaded and “paper heavy,” requiring at least one experienced patent lawyer to take the laboring oar on drafting of necessary filings. To the extent it is a group effort, because so much of the work centers on drafting — at least to get IPR petitions filed — there is less of a need for team members to interact physically in order to get the job done. Likewise, the decision points during IPRs — institution, final written decisions, even conducting oral argument — are all within the ambit of the three PTAB judges assigned to a particular panel. Each of whom would have significant prior experience interacting with their colleagues remotely. And because IPR arguments don’t feature live testimony, conducting them over video conference — while not ideal — is generally an acceptable alternative to delay or choosing not to have an argument at all.
Lastly, it is hard not to read the Lex Machina report without at least a measure of respect for the PTAB’s ability to keep to the statutory deadlines for cases that were already pending when COVID-19 hit. From its quick issuance of guidance as to revised procedures at the commencement of the lockdowns, to the continued diligence of PTAB panels in issuing institution or final written decisions, there is a lot to admire in the PTAB’s handling of the crisis to date. Indeed the report lauds the “PTAB’s consistency in adhering to time frames” as it has “continued its trial flow in an effective, timely fashion.” Already a popular patent forum, in large measure because of its favorable time frames for petitioners/alleged infringers, Lex Machina’s report provides compelling evidence in support of the PTAB’s continued popularity. Pandemic or no pandemic, the PTAB’s outsized role in the patent ecosystem will continue apace.
Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.