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05.05.2020 | Legal Advisory

As we enter a new month and everyone attempts to plan for whatever the next phase of COVID-19 will bring, one thing appears certain—litigants and advocates may need to adapt to a new means of presenting their cases, but patent litigation here in the United States largely has been business as usual. In this advisory, we will address how pending patent litigation is moving forward across the nation despite the challenges that remote trials and arguments may present to counsel and how new case filings have not slowed in the past three months.

While Bench Trials and Arguments Go Remote, Courts Expect Jury Trials to Resume Soon

Of course, the impact of the virus has been most obvious in cases that were scheduled to proceed to a jury trial in the months of March, April, and May. But, even those districts where thousands of coronavirus cases have been diagnosed, courts have begun to signal that things will not be continued forever. For example, a district court judge in the Northern District of California told the parties in a hotly-contested patent suit that they should be prepared to proceed to a jury trial as soon as June 15. And judges throughout the country are moving forward with bench trials even over the objection of litigants. For example, Judge Henry Coke Morgan Jr. in the Eastern District of Virginia recently announced that he will conduct a bench trial via Zoom on the issues of infringement, willfulness, and damages in a case where Cisco Systems is accused of infringing a number of patents owned by Centripetal Networks. The trial is expected to begin this week and will put counsel to the test in terms of presenting evidence and conducting cross-examinations remotely.

The Federal Circuit also has been able to fully transition to a remote environment. In April, the CAFC began to hold oral argument by telephone. And this month, the court is scheduled to hear another 26 cases by telephone. It will decide another 43 cases on the briefs. 

Patentees Continue to File New Suits at the Regular Pace

Regardless of any disruption that the COVID-19 pandemic has caused to pending litigations, it does not appear to have significantly slowed the pace of new patent case filings. Country-wide, litigants filed 320 new patent cases in March 2020. This is more than the number of new patent cases filed in March 2019 (266 cases) and roughly in line with the number of new patent cases filed in March 2018 (344 cases). Moreover, the March 2020 numbers appear to be consistent with prior years in terms of the average number of cases filed per unique plaintiff. The average number of cases filed per unique plaintiff in March 2020 was 1.7, falling within the range of 1.6–1.7 cases per unique plaintiff seen from 2016–2019. This suggests the 2020 numbers are not overly influenced by a few plaintiffs filing a large volume of cases, as is common when non-practicing entities launch enforcement campaigns. 

The numbers for April 2020 similarly suggest COVID-19 has not slowed new patent case filings. Indeed, the number of new patent cases filed in April 2020 (396 cases) is higher than both April 2018 (331 cases) and April 2019 (310 case). This increase is largely due to plaintiffs filing on average 1.9 cases, higher than the 1.6 to 1.7 cases per unique plaintiff seen in 2018 and 2019. But overall, the number of unique plaintiffs filing new cases in April 2020 is largely consistent with the past two years.

While it is sure to take several months or years to truly assess COVID-19’s effect on patent litigation, the early data suggests that the virus has not been able to derail either existing patent cases or the rate at which new cases will be filed. If you have any questions about enforcing your patents or defending against claims of patent infringement during the COVID-19 outbreak, please contact a member of Nutter’s Intellectual Property Litigation practice group.

This advisory was prepared by Micah Miller in the Litigation Department. For more information, please contact Micah or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.