For
the
fifth
year
in
a
row,
it
is
time
for
this
column
to
share
some
thoughts
on
the
release
of
the
Lex
Machina
Patent
Report. As
always,
I
highly
recommend
that
readers
register
for
the
report
and
give
it
a
read,
as
there
may
be
more
relevant
information
in
the
report
than
what
follows
for
any
given
reader.
As
in
prior
years,
what
follows
are
three
idiosyncratic
takeaways
based
on
my
review
of
the
report.
First,
as
always,
the
report’s
information
on
the
number
of
patent
case
filings
deserves
further
consideration.
Second,
we
should
discuss
the
reasons
behind
the
EDTX’s
resurgence
to
the
top
of
the
charts
in
terms
of
patent
litigation
workload
—
and
why
changes
at
the
PTAB
might
serve
to
cement
EDTX
as
the
busiest
patent
trial
court
for
the
foreseeable
future.
Third,
we
will
check
in
on
the
upward
trend
in
patent
damages
awards,
with
at
least
a
nod
to
the
potential
impact
third-party
litigation
funding
might
be
having
in
that
regard.
In
last
year’s
review,
I
mentioned
the
overall
decline
in
patent
case
filings
in
2023,
which
this
year’s
report
categorizes
as
a
“sharp
decline.”
At
the
same
time,
I
made
clear
that
“the
(2023)
report
takes
pains
to
note
that
much
of
the
decrease
is
actually
attributable
to
a
decline
in
what
the
report
calls
cases
filed
by
HVPs
—
or
high-volume
plaintiffs.“
2024,
however,
saw
a
“notable
surge
in
filings
from
plaintiffs
who
are
not
classified
as
high-volume
plaintiffs,”
helping
fuel
a
22%
in
cases
filed
in
2024
over
2023.
Still,
the
report
notes,
“the
overall
volume
of
patent
complaints
in
2024
still
fell
short
of
the
three-year
average
of
3,930
filings
observed
from
2020
through
2022.”
Replacing
the
high-volume
plaintiff
cases
that
helped
fuel
that
2020-22
average
were
ANDA
case
filings
(21.6%
increase
over
2023)
and
design
patent
filings
(34.2%
increase
over
2023.)
In
short,
2024
saw
an
overall
increase
of
patent
cases
filed,
while
also
heralding
a
new
mix
of
plaintiffs
—
a
mix
less
driven
by
lower
value
high-volume
plaintiff
cases
and
more
by
claims
arising
out
of
generic
pharma
challenges
and
design
patent
assertions.
The
current
mix
of
plaintiffs
in
patent
cases
is
in
some
ways
more
reflective
of
where
patent
litigation
can
help
drive
significant
value
for
those
initiating
it.
Perhaps
the
easiest
example
is
ANDA
litigation,
where
a
successful
result
for
a
generic
challenger
can
unlock
sales
that
will
quickly
dwarf
the
cost
of
litigation
and
the
costs
of
seeking
regulatory
approval
to
market
a
generic
drug
in
nearly
all
instances.
Likewise,
design
patent
owners
are
often
able
to
use
their
patents
to
get
injunctive
relief
or
even
default
judgments
against
infringers,
making
the
investment
in
patent
filings
necessary
to
obtain
those
remedies
well
worth
it.
And
the
rise
of
cases
being
filed
by
“non-HVPs”
is
likely
being
driven
by
the
availability
of
third-party
funding,
as
well
as
the
promise
of
higher
damages
rewards
for
parties
able
to
successfully
navigate
their
cases
to
trial.
Higher
value
for
plaintiffs
equals
more
patent
litigation,
so
it
will
be
interesting
to
see
if
2025
matches
or
exceeds
2024
in
overall
number
of
cases
filed.
Second,
the
report’s
insights
into
the
resurgence
of
EDTX
as
the
preferred
venue
for
non-ANDA
and
nondesign
patent
litigation
is
of
interest.
As
striking
as
it
is
to
see
over
a
thousand
new
patent
cases
filed
in
EDTX
in
2024,
it
is
perhaps
even
more
striking
to
see
the
decline
in
popularity
of
both
Delaware
and
WDTX
—
the
two
most
popular
districts
in
2022
—
as
a
venue
of
choice
for
patent
owners.
With
respect
to
Delaware,
the
decline
in
filed
cases
from
668
in
2022
to
under
400
in
2024
is
notable,
especially
considering
the
uptick
in
ANDA
patent
cases
that
is
likely
buttressing
Delaware’s
tally.
It
is
not
surprising
to
see
patent
owners,
particularly
those
partnering
with
a
third-party
funder,
choosing
to
take
their
business
elsewhere
in
light
of
certain
disclosure
obligations
in
front
of
at
least
one
of
Delaware’s
judges.
Likewise,
the
changing
rules
in
WDTX
that
have
removed
the
certainty
for
plaintiffs
in
securing
Judge
Albright
for
their
cases
have
more
than
halved
the
number
of
case
filings
in
WDTX
from
2022
to
2024.
Wild
stuff,
with
the
cumulative
effect
of
cementing
EDTX
as
the
go-to
jurisdiction
for
patent
cases,
for
reasons
that
most
if
not
all
of
the
readership
are
well
aware
of.
That
will
likely
continue
if
the
PTAB
continues
with
its
current
discretionary
denial
practice
in
IPRs,
which
have
put
a
premium
on
quick
and
certain
trial
dates
as
potent
tools
for
securing
patent
owner-friendly
denials
—
with
trial
timing
and
certainty
an
area
where
EDTX
continues
to
shine.
Put
another
way,
for
those
of
us
who
remember
what
it
was
like
to
go
to
a
movie
theater,
the
current
dominance
of
EDTX
is
the
equivalent
of
a
weekend
where
a
new
Marvel
blockbuster
came
out
and
was
showing
on
every
screen.
Sure,
you
could
also
buy
tickets
for
the
romantic
comedy,
but
it
would
probably
be
at
an
off-hour
in
the
screening
room
with
the
prime
combination
of
broken
seats
and
sticky
floor.
Lastly,
the
statistics
for
patent
owners
regarding
damages
awards
remain
on
an
encouraging
upward
trend
according
to
the
report.
For
the
fourth
year
in
a
row,
awarded
patent
damages
that
have
not
(yet)
been
reversed
on
appeal
exceed
$1
billion,
with
2023
and
2024
seeing
awarded
damages
in
excess
of
$3.5
billion.
Perhaps
more
importantly,
the
number
of
cases
seeing
a
damages
award
has
experienced
a
rise
as
quick
as
Ozempic
users
shed
weight,
from
57
cases
in
2021
to
nearly
95
last
year.
That
significant
jump
may
reflect
the
increased
presence
of
third-party
litigation
funding
in
the
market,
which
in
theory
would
be
contributing
to
better
selection
of
cases
likely
to
win
at
trial,
as
well
as
increased
staying
power
for
patent
owners
to
decline
earlier
settlement
in
favor
of
rolling
the
trial
dice.
While
the
report
correctly
notes
that
“recent
figures
for
reversed
damage
awards
may
change,”
the
increased
success
that
patent
owners
have
seen
in
cases
that
go
to
trial
should
only
serve
to
encourage
more
such
efforts
in
the
coming
years.
Ultimately,
we
once
again
can
see
from
the
report’s
presentation
of
data
that
modern
patent
litigation
remains
a
vibrant
and
challenging
pursuit
for
both
plaintiffs
and
defendants.
As
always,
I
consider
myself
blessed
to
have
found
a
career
in
such
an
interesting
and
ever-changing
area
of
practice.
I
am
sure
that
many
in
this
readership
feel
the
same
way.
Thanks
once
again
to
Lex
Machina
for
pulling
together
and
presenting
the
data
in
a
way
that
highlights
how
well
our
little
area
of
law
continues
to
adapt
and
grow.
Please
feel
free
to
send
comments
or
questions
to
me
at
[email protected]
or
via
Twitter:
@gkroub.
Any
topic
suggestions
or
thoughts
are
most
welcome.
Gaston
Kroub
lives
in
Brooklyn
and
is
a
founding
partner
of Kroub,
Silbersher
&
Kolmykov
PLLC,
an
intellectual
property
litigation
boutique,
and Markman
Advisors
LLC,
a
leading
consultancy
on
patent
issues
for
the
investment
community.
Gaston’s
practice
focuses
on
intellectual
property
litigation
and
related
counseling,
with
a
strong
focus
on
patent
matters.
You
can
reach
him
at [email protected] or
follow
him
on
Twitter: @gkroub.