Pedram Sameni

As economists predict market slowdowns, companies focus on the need to protect their market share by enforcing their intellectual property (IP) rights or possibly monetizing it to bring value to their balance sheet. A company’s value, reputation, and success can be directly tied to its intellectual property, and therefore, it is critically important to safeguard that IP. According to the United States Patent and Trademark Office (USPTO), economic growth is driven by innovation and supported through intellectual property. Thus, it is essential that we study the relationship that exists between innovation-related growth and the trends in IP data.

Earlier this year, we published our findings on some of the best performing patent firms of 2021. Now, we have evaluated this data at the attorney level, meaning that we can compare the activity and performance of patent attorneys and rank them based on their work. To calculate this ranking, our Data Science Team had to develop an AI-based tool to read tens of millions of PDF documents available through the U.S. Patent and Trademark Office’s (USPTO’s) Public Pair website and then use neural networks to identify the attorney responsible for each application.

Last week, we explained our 2021 findings for the best firms involved in inter partes review proceedings. Today, based on the second annual ANDA Litigation Intelligence Report, which evaluates all stakeholders in Hatch-Waxman cases, we will focus on some of the best law firms involved in these complex cases, and their ranking based on their performance and activity. The study covered a four-year period, from July 1, 2017, through June 30, 2021, where we identified a total of 1,179 ANDA cases, 1,471 ANDA attorneys, including 289 local counsels, and 243 law firms. More than 90% of all cases were filed in New Jersey and Delaware, which made some attorneys and law firms in those states very busy during this period.

The annual IPR Intelligence Report evaluates all stakeholders in Inter Partes Review (IPR) proceedings each year. Here, we will reveal some of the best law firms involved in the 7,582 IPR challenges filed during the period of the study. In order to have a meaningful comparison, as well as compensating for the time required for each case from filing to completion (e.g. 6 to 18 months), we covered a period of five years, from July 1, 2016 through June 30, 2021, using the latest updates for the cases as of August 20, 2021. During this period, a total of 7,582 IPRs were filed to challenge 5,087 unique patents and 80,831 unique claims. Nine-hundred and thirty law firms and a total of 5,341 attorneys represented 2,658 companies involved in one or more IPRs as patent owners or petitioners.

Our recent IPR Intelligence report covers the inter partes review (IPR) filing activity at the Patent Trial and Appeal Board (PTAB) from July 1, 2016, through June 30, 2021. Over the period of our study (July 1, 2016, through June 30, 2021) a total of 7,582 IPR petitions were filed, which shows a 1.6% decline compared to the five-year period we covered in our fourth annual report last year (July 1, 2015, through June 30, 2020). Nine-hundred and thirty law firms have represented patent owners and petitioners, while 5,341 attorneys worked for these firms. In the last five years, 2,658 companies have been involved in one or more IPRs, out of which 1,275 were on the petitioner’s side and 1,630 were patent owners.

Last week, Patexia released its second annual ANDA Litigation Intelligence Report in which we covered the rankings, statistics and comprehensive analysis of abbreviated new drug application (ANDA) and Hatch-Waxman stakeholders. We couldn’t help but notice the decline in ANDA filing activity that has begun, after reaching its peak in 2018. Year-over-year comparison of the ANDA data, as seen in the following chart, shows the trend in the last four years. We observe a considerable decline from 2018 to 2019 (a decline of 4.2 cases/month) followed by a smaller decline from 2019 to 2020 (2.7 cases/month) and the sharpest decline from 2020 to 2021 (5.3 cases/month) indicated by the data analyzed for the first half of 2021. In total, this represents a decline in ANDA case filings of about 36% from 2017 to 2021. The same trend is noticed with the number of the patents involved in these cases.

There was a sharp decline in the number of inter partes review (IPR) petitions filed last year; in 2019, a total of 1,271 IPR petitions were filed, compared to 1,607 IPR petitions in 2018. This represents a decline of 21%. Patent litigation has been falling from its peaks in 2015 and, as IPR filings closely follow the U.S. district court trends, with a lag of 12 to 18 months, this decline in IPRs was expected. Taking a closer look at the most active IPR firms, the following firms lost or gained significant market share as the broader IPR market declined in 2019. While there are different ways to look at this, we chose to compare the absolute change instead of the percentage of change, as smaller players with, for example, a single case in 2018, can grow 100% by adding one new case in 2019. We also looked at the total IPR activity for the firms as they represented either the petitioners and patent owners in 2018 or 2019.

Last month, we released our first ITC Intelligence Report. For the first time, we ranked ITC law firms and attorneys based on their performance and activity. Our research team analyzed the outcome of 308 ITC Section 337 Investigations, filed from January 1, 2014, through December 1, 2019. For all the terminated cases, we identified the outcome (e.g., violation, no violation, settlement, etc.). Then, depending on the outcome and win/loss of parties (i.e., complainants and respondents), we allocated points to each side, including the law firms and attorneys representing them.