Patent reform hasn't helped at least not yet when it comes to curbing litigation.
After more than a decade of discussion and debate over U.S. patent reform, the most dramatic change to the patent system in more than half a century took effect last year with passage of the Leahy-Smith America Invents Act. Phase-in of the law began in September 2011, and the aim was to bring about significant change.
But in 2011 the legislation did not help reduce the number of patent suit filings. In fact, patent cases kept law firms busier than ever, according to results of the 2012 Patent Litigation Survey by Corporate Counsel, an affiliate of the Daily Business Review.
The study, which ranks law firms according to how many federal court patent suits they handled in 2011, shows a steep rise across the board in the number of new cases they took on.
Fish & Richardson, for example, which ranked number one for the fourth consecutive year, handled 173 cases in 2011, compared to 128 in 2010, up 35 percent. Jones Day, which took second place this year, saw its caseload jump from 66 to 125, up 89 percent. The other firms at the top of our list, such as Kilpatrick Townsend & Stockton; Niro, Haller & Niro; Kirkland & Ellis; and DLA Piper, also saw a sharp rise in their caseloads.
The increase is perhaps not surprising since the number of patent infringement actions filed in 2011 reached 4,015, the highest number ever recorded and a 22 percent jump from the previous year, according to a study by PricewaterhouseCoopers.
Smart-phone wars, including battles between Apple Inc. and Samsung Electronics Co., and other technology-based patent suits were widespread, as were lawsuits related to infringement of pharmaceutical and other life sciences patents. Nonpracticing entities, commonly called "patent trolls," also continued their efforts to extract value from their patent portfolios by suing companies for infringement, thereby contributing to the dramatic rise in patent litigation for the year.
Ironically, the sharp increase in cases per firm is due in part to the reforms that took effect under the America Invents Act. The new law changed the joinder rule for patent cases and now restricts plaintiffs from naming numerous unconnected defendants in a single suit. Previously, defendants that weren't factually connected to each other could be named in a single suit, and NPEs, especially, benefited from filing one suit against multiple defendants.
On the day before the new law took effect, nonpracticing entities, or NPEs, filed a record number of patent infringement lawsuits. According to Dennis Crouch, who writes a blog about patent law, at least 54 new patent cases were filed that day, accusing more than 800 corporate entities of patent infringement.
"More patent suits were filed on that day than any other in history," said Ann Cathcart Chaplin, head of the litigation practice at Fish & Richardson. Each complaint was filed against multiple defendants.