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How about another chart which accounts for the change in the joinder rule? You should at least explain that before the rule change, each complaint averaged X defendants, and post-change it was Y. I suspect the number X is close to 3 and Y is close to 1. From that perspective, 2016 is at least 1/3lower than 2000. Current rates may well be below pre-CAFC rates.
I don’t think that the IPR (and the like) bands would be divided by 3.
Which of course would show even more strongly that the Congressional intent for having them is miserably failing.
To be totally fair the 2000-2012 data should include inter partes reexamination; it was about 1/6th as common as IPR is now, but that would still be visible on the chart.
It’s also kind of hard to interpret the chart in light of the AIA joinder changes. I’d be interested in seeing a chart normalized by the number of distinct patents at issue or by the number of parties.
Yes, pre-AIA suits joining multiple defendants masked defendant numbers and costs, but that would not affect the significant 2016 drop from the last three prior years.
Is it significant, though? 2012-2016 seem about as variable, proportionally, as 2000-2010.
Here’s a chart from August showing the number of unique patents being asserted each year through 2015:
link to patexia.com
Given that the number of unique patents asserted fell in 2015 even as the total number of filings rose, I expect that 2016 will show a continuation of that trend. That’s more telling to me.
I wonder if law firms are starting to feel it already or if there’s enough total patent litigation activity to mask the effect for another year or two.
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