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Patent Litigation Will Never Be the Same Again

October 26, 2015

Fenwick & West was honored in Corporate Counsel’s 2015 Patent Litigation Survey among the top firms that have adapted to the transformed world of patent litigation. These firms have “demonstrated their IP expertise and have proved that they can handle the increased workload,” reported Corporate Counsel.

Quoting Fenwick patent partner Robert Sachs, the publication noted that U.S. patent law has changed radically in the past few years with an increased volume of cases being heard at the Patent Trial and Appeal Board (PTAB) and important decisions like the U.S. Supreme Court’s Alice v. CLS Bank.

Since Alice v. CLS Bank, patent invalidations have skyrocketed, reported Corporate Counsel, citing analysis by Sachs, who has been closely monitoring post-Alice invalidations on his blog, Bilski Blog.

Alice ruled that abstract ideas are ineligible for patent protection, making previously patentable software and business methods unpatentable.

With this new precedent, Sachs told Corporate Counsel that in the 14 months following Alice, more patents were invalidated than in the five years before the ruling.

“The Supreme Court decision means judges are being forced to aggressively eviscerate what counts as an eligible patent,” he said.

"Ten years ago, it was unusual to bring a motion to dismiss on these grounds, and those that were brought were routinely denied," he added. "But now, it's grounds for malpractice if you don't bring one.

Sachs also noted that some companies are waiting it out, anticipating that the courts will eventually rethink the standard under the pressure of the incredible volume of appeals. When this occurs, invalidations will significantly decrease.

"But it's going to be a long process," Sachs said. "For now, companies are concerned about the impact this is having on their patent portfolios and are looking for guidance."

In this challenging environment, firms like Fenwick continue to stand strong, Corporate Counsel reported. Fenwick handled 32 federal district court patent suits in 2014 and jumped up four spots in the Corporate Counsel rankings of the most active patent litigation practices.

The full patent litigation survey is available through the Corporate Counsel website (subscription required).​​