From increasing damage awards into the billions of dollars, to a new hot patent court for plaintiffs in West Texas, to increased financing available from litigation funders to growth in competitor lawsuits with large entities looking to monetize their own portfolios, there is a changing face of patent litigation as we head into a post-pandemic world.
How are In-House Counsel preparing to address the aforementioned post-pandemic patent litigation landscape? What are they doing themselves from a defensive and offensive perspective? Do they see patent litigation in the federal courts to continue to increase, or will the International Trade Commission (ITC), Patent Trial and Appeal Board (PTAB) and/or foreign jurisdictions play a larger role in 2021 and beyond?
IPWatchdog.com reached out to patent litigation counsel who serve in-house to ask them about their perceptions of what patent litigation will be like moving forward into the second half of 2021.
According to Liz Peters, Assistant General Counsel for Intellectual Property at Steelcase, a 100-year-old commercial products company, “as we come out of the pandemic, I anticipate the appetite for enforcement will increase for a sustained period of time.” Peters would go on to tell us that judicial enforcement is now “accessible and enticing” due to increased litigation financing opportunities.
Peters told IPWatchdog:
In terms of innovation, the pandemic may have placed many competitors on similar playing fields, trying to solve similar problems from similar perspectives. Coupling that with a belief that the pace of innovation will accelerate even more in the next few years during recovery, competitors are likely to bump into each other more often post-pandemic. Judicial enforcement is also more accessible and enticing – from more litigation financing opportunities, to the acceptance of virtual or remote proceedings, to higher awards being handed to the victors. And IPR and other PTAB proceedings have reached more of a steady state that don’t seem to strike as much fear into patentees as they did a few years ago. This will likely raise the level of activity across the board in federal courts, the ITC, PTAB proceedings, etc, although knowing which venues will be impacted the most still remains to be seen.
With respect to what Steelcase is doing, they are investing in innovation and pursuing both utility and design protection globally. Peters explained:
We are investing in our innovation, and subsequent market protection efforts, on a global level. Both utility and design patents have been and will continue to be a main avenue of our protection platform, but we look to lean harder on other forms of IP protection as well (trade dress, trade secrets, etc) to create a more robust platform of rights. And we are increasingly focusing our efforts in Asia, where the viability of IP enforcement is starting to improve, as well as other geographies to support our business efforts in those regions.
Meanwhile, Kirk Goodwin, Assistant General Counsel and Head of Global Patents for Whirlpool Corporation, told IPWatchdog that he is not seeing an uptick in patent trolls, although he is experiencing a challenge with respect to what he referred to as “head in the sand” infringers.
“I think the challenge we are seeing is we are having “stick your head in the sand” infringers,” Goodwin explained. “They like to say they are drop shippers, but they are really distributors. We’ve had people tell the courts in Texas that they don’t even know what they are shipping.”
“When the manufacturer is in China and they claim to be the seller, and they have a warehouse [in the U.S.] that claims they are just a drop shipper,” Goodwin explained frustrated. “They work in concert with the manufacturer.”
Goodwin’s view of patent litigation is particularly interesting given that Whirlpool makes generous use of the district courts in Texas to chase infringers, but also finds itself as a defendant in those same Texas courtrooms.
The reason Texas is nice is because it is understandable and predictable. Of course, you want to win, but predictability is more important. You don’t want uncertainty and you cannot invest the way you want to if you have to keep a reserve because of uncertainty.” Goodwin explained. “I haven’t chosen Texas because the venue is easier to file in, I’ve chosen it because the judges are savvy,”
What about complaints that Texas courts are de facto “the” patent litigation tribunals of record within the district court system?
“Why wouldn’t we want to educate one court on our patents for judicial efficiency?” Goodwin asked. “We have the Federal Circuit, now we need a district court to create judicial efficiency. We have experts in every other area of government, but we don’t want experts in the judicial system; that doesn’t make any sense to me.”
Both Liz Peters and Kirk Goodwin will be participating on panels as part of the virtual IPWatchdog® Patent Masters™ Litigation program taking place June 7-10, which is free to attend. Peters will be on a panel discussing how in-house counsel are preparing for the new face of patent litigation. Goodwin will be on a panel discussing what every litigator needs to know about Texas district courts.
Image courtesy DepositPhotos
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