As we have previously reported here, 2016 was a banner year for Section 337 proceedings at the ITC.  Sixty new Section 337 related complaints were filed at the ITC—a 50% increase over the previous year.  2016’s tally exceeds the number of complaints in each of the previous four years (2012-2015), and only lags behind the 2011 numbers—the height of the so-called ‘smartphone wars.’

This increased attention of patent adversaries to the ITC is even more remarkable when viewed in light of the reduction of new cases in other forums for patent dispute resolution.  As reported by Docket Navigator, the number of new district court patent cases declined by about 20% compared to 2015 (from 5,775 to 4,587).  At the USPTO’s Patent Trials and Appeals Board (PTAB), 40 fewer AIA proceedings were filed in 2016 than 2015 (1,758 compared to 1,798).  The number of new Post Grant Review (PGR) petitions increased from 12 to 29, the number of new Inter Partes Review (IPR) petitions dropped by 19 (from 1,653 to 1,634) and the number of new Covered Business Method (CBM) petitions declined by about 30% (from 130 to 91).

This difference in trends underscores advantages the ITC offers to intellectual property rights owners, including issuance of an order excluding the offending imports from the U.S. market as a standard remedy; refusing to grant a stay of an investigation for an IPR; and fast paced proceedings with a resolution typically within sixteen months from the institution of an investigation.

Takeaway

Patent owners reduced their reliance on district courts and PTAB in 2016 by filing fewer patent cases and petitions, while at the same time filing a significantly larger number of complaints at the ITC compared to 2015.  In light of advantages offered by the ITC as a forum for patent dispute resolution, this trend is expected to continue in 2017.

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Blaney Harper's practice focuses on strategic patent litigation representing electronics, software, and information technology companies in matters such as patent enforcement in United States District Courts and the International Trade Commission (ITC). Blaney also represents and counsels clients concerning patent portfolio development and patent prosecution and appeal, including Inter Partes Review, in the USPTO. Blaney co-chairs the Firm's ITC practice and is the IP Practice Coordinator for the Washington Office.