While 2020 was a year of unprecedented challenges, it also spurred ingenuity in the ways we practice and highlighted the centrality of intellectual property to the American economy. As we head into the promise of a new year, we pause to take stock of 10 practice trends from 2020.
1. Patent litigation increased significantly in 2020.
Despite COVID-19, 2020 was a robust year for patent litigation in the U.S. As of late December, 3,994 new patent cases were filed in U.S. district courts, which exceeds 2019's full-year total of 3,592 by nearly 11%. This reverses the year-over-year declining trend since 2015 and surpasses 2017's total.
The year also demonstrated resilience and adaptation on the part of the patent bench and bar, changing the way we practice. Since mid-March 2020, in-person depositions have all been but unheard of, and few courts have held in-person hearings.
Yet the patent bench and bar responded by quickly developing new ways to practice effectively during the pandemic. The tools available to conduct remote depositions became remarkably good, we figured out ways to review confidential material remotely and securely, and we even conducted hearings and mock trials remotely.
Courts have also done an impressive job managing their rising caseloads and issuing decisions apace. To be sure, there are elements of the practice best done in person, and we look forward to the day when that can resume. But in the meantime, the patent bench and bar rose to the challenge.
2. The concentration of patent cases in five venues continued.
The consolidation of patent litigation in select venues continued in 2020. Just five districts accounted for more than 62% of patent cases filed last year, with the U.S. District Court for the Western District of Texas displacing the U.S. District Court for the District of Delaware as 2020's top choice for plaintiffs.
Litigation over venue accompanied the concentration of cases in Texas, with two trends emerging. First, for cases filed in the Waco Division of the Western District of Texas, the court granted many motions for intradistrict transfer to Austin — resulting in an uptick of such motions. There were 45 such requests in 2020, all of which were granted.
Second, and conversely, the court was less receptive to motions for interdistrict transfer. Patent defendants filed 20 such motions in 2020, with the U.S. District Court for the Northern District of California requested most often as the preferred transferee forum. Of the 20 motions, 11 were denied, eight were granted, and one was deferred.
In November, the U.S. Court of Appeals for the Federal Circuit considered a denial of a motion to transfer from the Western District of Texas to the Northern District of California on a petition for a writ of mandamus in In re: Apple Inc.
In that case, Apple promptly moved to transfer venue to and moved to stay pending resolution of its transfer motion. The court denied the stay and proceeded with claim construction and discovery, then denied transfer stating that the significant steps that had already occurred in Texas weighed heavily against transfer.
Granting mandamus, the Federal Circuit found that "all the 'significant steps' undertaken by the court and parties in the case occurred after Apple moved for transfer [and] to stay the case." It ruled that:
once a party files a transfer motion, disposition of that motion should take top priority in the case. ... A district court's decision to give undue priority to the merits of a case over a party's transfer motion should not be counted against that party in the venue transfer analysis.
