Lex Machina has provided us with a suggestive bit of data regarding the impact of recent changes to the patent law: September patent infringement case filings dropped 40% from 2013.
Is the change due to the Supreme Court’s decision to (arguably) undermine software patents in Alice? Maybe. Did the decrease in filings happen because owners of ‘weak’ patents fear having to pay the other side’s attorneys’ fees in the wake of the Supreme Court’s Octane Fitness fee-shifting decision? Could be. Maybe the assorted post-issuance procedures created by the America Invents Act has contributed to the decrease? Possible. A few weeks ago, Vox spotted a trend against software patent validity in US courts, which may (or may not) have something to do with the decline in new suits. As usual, PatentlyO has a good rundown of some of the changes possibly driving the decrease.
We all know that correlation should not be confused with causation, but if the decrease holds—and only time will tell whether this is a blip or a trend—there are plenty of changes to the US patent system that correlate rather nicely with the drop. Untangling causation among all of the candidates, even if possible, will require more data. Certainly, ‘a little bit of all of all them’ may be the most likely explanation of any sustained decrease in patent infringement suits.
Assuming the drop in patent litigation volume holds, and further assuming we can credit it to some variety of patent reform, whether legislative or judicial, whether the change is a ‘good thing’ may depend upon the nature of the cases still being filed and any individual commentator’s point of view. Wise commentators will likely withhold judgment until we have both a larger amount of data and more details about the suits being filed. Nevertheless, the drop is large enough to catch the eye of any interested observer. This is a (possible) trend worth watching.