A firm that has historically focused on personal injury represented the highest number of plaintiffs in patent cases filed at the US federal and district courts between 2020 and 2022. The firm, Chong Law Firm, represented plaintiffs in 795 cases.

This is according to a report from Lex Machina that surveys emerging trends in patent litigation at the federal district courts, appellate courts and at the Patent Trial and Appeal Board (PTAB).

Virginia-based Rabicoff Law came second (677) after Chong Law Firm, followed by IP-focused Sand Sebolt & Wernow (618) as the most active law firms representing plaintiffs.The report says: ‘For all of the three most active plaintiff-side law firms, over 80% of the cases each of them filed were on behalf of high-volume plaintiffs.”

High-volume plaintiffs are plaintiffs that filed at least 10 patent cases (excluding abbreviated new drug applications (ANDA) cases) within a 365-day period. Lex Machina's legal data expert for patent litigation Elaine Chow said: ""Our data indicates that for the past three years, the number of patent cases filed in district court continues to hover between 3,800 and just over 4,000."

On the defence side, Chow noted: "Fish & Richardson continue to dominate, defending clients in nearly twice as many cases over the last three years as the next most active defendants' firm." Fish & Richardson appeared on behalf of defendants in 728 cases, followed by Gillam & Smith (391 cases), a nationwide law firm whose area of practice includes IP, commercial litigation and personal injury. Top Delaware law firm Morris Nichols Arsht & Tunnell came third with 272 cases, and who also appeared in eighth place on the list of the most active law firms representing plaintiffs.

USA Chambers has awarded Fish & Richardson top-tier rankings for IP in Delaware, Massachusetts, Minnesota, and  Washington DC, as well as top-tier nationwide rankings in intellectual property and international trade in IP. 

In terms of parties involved, Samsung was the top defendant in patent litigation cases at the US federal and district court,  Cedar Lane Technologies was the top plaintiff.

PTAB

The PTAB is a tribunal within the US Patent and Trademark Office providing an avenue to attack the validity of patents; consequently it is often used as a counter attack in patent disputes. The number of PTAB petitions filed continued to hold steady over the past three years. 

Fish & Richardson represented parties in the highest number of petitions filed at the PTAB between 2020 and 2022. It was followed by leading IP firms Finnegan and Sterne Kessler Goldstein & Fox.

Chow noted: “The number of IPR petitions filed in the PTAB has fluctuated between 1,300 and 1,450. Patent litigation has remained relatively steady, even during a pandemic.”

Large tech companies continued to dominate the list of the most active petitioners during this three-year period. The two most active petitioners were Samsung entities, followed by Apple and Google. These four entities were also the top four patent defendants in cases filed in district court from 2020 to 2022, albeit in a different order.

Telefonaktiebolaget LM Ericsson was the most active patent owner defending its patents at the PTAB (62 trials petitioned), followed by Ericsson and then WSOU Investments.

The report also surveys emerging trends in venues and judges. The Western District of Texas was the most active district in 2022 with 867 patent cases filed, though this number dropped from 2021 in which 981 cases were filed.

Judge Alan D Albright from the Western District of Texas was assigned to the highest number of patent cases in 2022 with 678 cases, though this number dropped from 2021 in which he was assigned to 932 cases.

He has been actively  encouraging parties to file at the Western District of Texas - his local rules involve postponing the issue of patent eligibility until summary judgment or claim construction. The report states: ‘This resulted in a court that offered the possibility of a faster-moving docket. These factors likely contributed to his top ranking as the most active judge.’

The early effects of the July 2022 standing order in the Western District of Texas may have contributed to the decreased numbers of cases filed in this court in 2022 says the report. This standing order from then-Chief Judge Orlando Garcia of the Western District of Texas – which ordered that patent cases filed in Waco be randomly assigned to other judges in the Western District, including Judge Albright – appeared to have reduced the number of cases filed in that district in 2022.

A copy of the Lex Machina report can be requested here.