This post initially appeared on Unified Patents’ News and Views Blog. More analysis is available here.
Patent litigation made a comeback in 2024. Meanwhile, in Europe, non-practicing entities (NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it.) quickly found the Unified Patent Court (UPC) in 2024 after it opened its docket for business in July 2023.
In 2023, district court patent filings by NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. had decreased by 23.7% compared to 2022, while filings by operating companies in district court had increased by 14.6%. Overall, district court patent filings in 2023 had fallen 18.8% compared to 2022.
But in 2024, district court patent filings grew by 18.2% from the previous year, with NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. and operating companies increasing their patent filings by 14.1% and 22.7%, respectively. NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. continued to file more than half of all patent cases in district court.
Concomitantly, petitions for inter partes review and post-grant reviewA procedure by which a third-party may contest issuance of a patent at the USPTO within a short period (9 months) after issuance. Introduced to the U.S. by the AIA. The EPO has a similar procedure. in the Patent Trial and Appeal Board (PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA.) increased by 14.3% in 2024 compared to 2023. In addition, requests for ex parteA Latin term, used as an adjective, indicating that an act (typically an adjudicative process) is done at the initiative of one party only, and without notice to other parties or the public. This term characterizes the patent examination process. reexaminationThe process by which the USPTO conducts an examination of a patent after it has issued, undertaken upon written request by a member of the public who establishes that there is a reasonable likelihood that the requester would prevail with respect to at least 1 of the claims challenged in the request. The pre-AIA standard was that there be "substantial new increased by 28% in 2024 compared to 2023; 444 ex parteA Latin term, used as an adjective, indicating that an act (typically an adjudicative process) is done at the initiative of one party only, and without notice to other parties or the public. This term characterizes the patent examination process. reexaminationThe process by which the USPTO conducts an examination of a patent after it has issued, undertaken upon written request by a member of the public who establishes that there is a reasonable likelihood that the requester would prevail with respect to at least 1 of the claims challenged in the request. The pre-AIA standard was that there be "substantial new requests were filed in 2024, the highest number in 10 years. Unified Patents filed the most requests for ex parteA Latin term, used as an adjective, indicating that an act (typically an adjudicative process) is done at the initiative of one party only, and without notice to other parties or the public. This term characterizes the patent examination process. reexaminations in 2024, with 57.
We continue to see the impact of the July 2022 order by then Chief Judge Orlando Garcia of the W.D.Tex. and the May 2024 order by current Chief Judge Alia Moses that make filing (and keeping) patent cases before Judge Alan Albright more difficult for plaintiffs. Patent plaintiffs – and especially NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. – have increasingly turned from the W.D.Tex. to the E.D.Tex., which retained the top spot for district court patent filings in 2024. The W.D.Tex. fell to fourth place for the number of patent cases filed in 2024, behind the N.D.Ill. and the D.Del.
Separately, design patentAs distinct from a utility patent. A design patent protects only the ornamental design or appearance of an article of manufacture, but not its structural or functional features. An ‘article of manufacture’ is a broad term which may extend even to computer icons. Like utility patents, design patents must be nonobvious but this standard is harder to apply to designs. litigation filings increased by 34.8% in 2024 compared to 2023. The 364 design patentAs distinct from a utility patent. A design patent protects only the ornamental design or appearance of an article of manufacture, but not its structural or functional features. An ‘article of manufacture’ is a broad term which may extend even to computer icons. Like utility patents, design patents must be nonobvious but this standard is harder to apply to designs. cases filed in 2024 were a 10-year high; 47.3% of all design patentAs distinct from a utility patent. A design patent protects only the ornamental design or appearance of an article of manufacture, but not its structural or functional features. An ‘article of manufacture’ is a broad term which may extend even to computer icons. Like utility patents, design patents must be nonobvious but this standard is harder to apply to designs. cases filed in 2024 were in the N.D.Ill.
Other patent news in 2024:
- In LKQ Corporation v. GM Global Technology Operations LLC, the Federal CircuitSee CAFC overruled en banc a longstanding test for design patentAs distinct from a utility patent. A design patent protects only the ornamental design or appearance of an article of manufacture, but not its structural or functional features. An ‘article of manufacture’ is a broad term which may extend even to computer icons. Like utility patents, design patents must be nonobvious but this standard is harder to apply to designs. obviousness as rigid and inconsistent with the Supreme Court’s guidance on obviousness for utilityAn invention must useful to be patentable. Very few inventions are invalidated as lacking utility. Perpetual motion machines, for example, are typically found invalid for lacking utility. patents.
- In Allergan USA, Inc. v. MSN Laboratories Private Ltd., the Federal CircuitSee CAFC held that a first-filed, first-issued, later-expired patent claimThe section of a patent that describes the legal scope of the invention. Patent claims are supposed to establish the boundaries of the patentee’s entitlement to exclude. Under peripheral claiming as practiced in the U.S., claims establish the outer bounds of the patentee's privilege to exclude others. For further reading, see Burk and Lemley, Signposts or Fence Posts. having a common priority date with a later-filed, later-issued, earlier-expiring reference patent claimThe section of a patent that describes the legal scope of the invention. Patent claims are supposed to establish the boundaries of the patentee’s entitlement to exclude. Under peripheral claiming as practiced in the U.S., claims establish the outer bounds of the patentee's privilege to exclude others. For further reading, see Burk and Lemley, Signposts or Fence Posts. cannot be invalidated by that claim.
- None of the proposed legislation that would significantly impact patent litigation – the Patent Eligibility Restoration Act (PERA), the Promoting and Respecting Economically Vital American Innovation Leadership Act (PREVAIL Act) and the Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive Patent Rights Act (RESTORE Act) – became law. As a new Congress is now in session, the process begins all over again and all bills must be reintroduced and reconsidered anew.
- The USPTOUnited States Patent and Trademark Office. See also PTO. updated its guidance on AI patent eligibility under 35 U.S.C. Section 101 and formalized rules for Director Review of PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. proceedings.
- The Government Accountability Office released a study on Third-Party Funding of Patent Litigation in December finding broad support for a Federal disclosureOne of the primary objectives of the patent system. In return for the government-granted right to exclude that is embodied in the patent, the inventor must disclose to the public through his patent the invention for which protection is sought. Inventors unwilling to disclose their invention to the public may instead opt for trade secret protection. requirement from funders, lawyers, and stakeholders alike.