Richard Lloyd

It has been clear for most of 2016 that the number of new patent litigation cases was going to be down this year in the US. But it is now becoming ever more likely that the fall will be dramatic. According to the latest estimate from Lex Machina, the total amount of suits for 2016 is expected to be 4,586; that’s down from 5,822 last year, which was the second busiest on record.

If that prediction is accurate (the number of new suits is currently at just over 4,000) then it would mean that patent litigation will be at a level not seen since 2011, the year that the America Invents Act (AIA) was signed into law. Of course, one of the provisions of the AIA changed the joinder rules so that more infringement cases involving the same patents had to be filed separately rather than grouped together. It will be interesting to see in the New Year when Lex Machina and others analyse the data for 2016 in depth how many cases are being brought by the same plaintiffs. Once you factor that in there’s every chance that, on a like-for-like basis, new case numbers could revert to hovering in the 2,500 to 3,000 range or even lower. After all, with the new joinder rules in place in 2012 the number of filed suits surged to over 4,000.

With patent reform largely expected to be placed on hold as the new Trump administration and Congress work through more pressing legislative priorities, it seems that the latest litigation data will do little to support the pro-reform case. But these numbers also suggest that many of the elements that the reform camp has been pushing for - and which have been addressed by the courts (such as fee-shifting and higher pleading standards) - are having an effect.