2022 Trends And Predictions For Patent Litigation

• Published date: 11 January 2022
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Patent, Trials & Appeals & Compensation
• Law Firm: Morrison & Foerster LLP
• Author: Mr Richard Hung, Bita Rahebi and Mark Whitaker

As the calendar flips to 2022, intellectual property litigators are wondering what the new year has in store.

We predict substantive and procedural uncertainty in two key areas. Substantively, there will be continued demands for clarity on Section 101 law, but no real clarity. Procedurally, recent U.S. Court of Appeals for the Federal Circuit mandamus decisions will cause patentees to reconsider their venue selections.

The only certainty this year is that hybrid work will continue, as litigants grow even more accustomed to remote work and new variants temper our return to physical offices.

No Real Clarity on Section 101

Walk into a room of sophisticated patent litigators, and talk will invariably turn to one thing: What is happening with patent eligibility law?

Some will advocate for higher standards for invalidating a patent under Section 101 of the Patent Act. Others will bemoan the U.S. Patent and Trademark Office's laxity in allowing patents on what one could do with pen and paper. But all will emphasize the need for greater clarity from both the Federal Circuit and the U.S. Supreme Court on these issues.

This, of course, raises the questions: Do we really need greater clarity, and will we get it next year? A review of Federal Circuit decisions over the past 12 months suggests that the answer to both questions is "no." The Federal Circuit is humming along with its application of Section 101 law, and the right fact pattern and the right Supreme Court case are necessary to change things considerably.

The Federal Circuit's Section 101 jurisprudence since last December has been a model of consistency. Of the 31 decisions, excluding Rule 36 affirmances, that the appellate court issued during that time frame, 29 held patents to be unpatentable, and two held them to be patentable. Those cases involved just one dissent, by U.S. Circuit Judge Pauline Newman, and one concurrence, by U.S. Circuit Judge Jimmie Reyna, meaning that the Federal Circuit agreed on patentability outcomes over 90% of the time.

There also were five reversals, meaning that the Federal Circuit agreed with the district courts or Patent Trial and Appeal Board judges over 80% of the time. If one includes Rule 36 affirmances, these rates would only be higher. In fact, the Federal Circuit's decisions were so mundane that it designated 21, or 68%, of them nonprecedential, higher than prior statistics might suggest.¹

The types of cases appealed also reflected consistency, at least in the types of...