Precipitoius drop in patent litigation: Is this why my income is down over the last several years?

[Warren Smith]

My practice has been focused on patent translation for actions in patent invalidation trails. It used to keep me quite busy. Not lately though.

 

I just did this analysis:

 

 

Wow. This explains a lot, I think.

 

I had been thinking that the work was going elsewhere, but when I went through the actual database of cases, I see that the work has gone AWAY, not "gone elsewhere."

 

Does anybody know why Japanese firms are not filing for IPRs lately? The crash in the work happened before COVID, of course. Was there a change in laws/rules? Do we anticipate that IPRs will come back?

 

Clearly it is time to change my specialty....

 

What do my colleagues think about this? Thanks in advance.

 

Warren Smith

 

 

 

[Dan Lucas]

Warren, this is interesting and looks fairly persuasive. As we have seen many times on this list, and on various forums, there is a strong tendency to blame everything first on the use of CAT (15-20 years ago, but still rumbling on) and latterly on MT. Those are certainly secular trends, but they are not the only ones. Regulatory issues can be huge drivers of industry change.

Not being knowledgeable in either the law or patents, I can't think of anything myself, but perhaps the matters discussed in this 2018 URL are worth investigating:

https://www.klgates.com/The-Supreme-Court-Upholds-and-Clarifies-Inter-Partes-Review-05-02-2018

With further discussion from earlier this year:

https://www.natlawreview.com/article/federal-circuit-tosses-shaw-ipr-estoppel-applies-to-all-claims-grounds-reasonably

Maybe the net impact is to raise the bar for IPR in the US in general? It may not be simply a case of Japanese firms pulling back.

Dan Lucas

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[Warren Smith]

Thanks, Dan. I will look at those references.

 

Warren

 

Oh -- I see that I slightly mislabled my graph. It should ".... case filings *involving* major Japanese electronics firms," not *by* major Japanese electronics firms (as the Japanese firm could be either the respondent or the petitioner in the cases I researched).

 

 

 

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[John Stroman]

Warren and Dan,

This comment may be irrelevant since I deal only in JP and PCT filings, but until a few years ago my impression was that many Japanese companies took the spaghetti approach with filings, i.e, "throw spaghetti at the wall and see what sticks." In other words, there would be one application for an invention of a "product" (物), a separate application for each use (用途), and a separate application for a production process for the product (製造方法). The former approach has been replaced almost entirely by the "one size fits all" approach wherein all are combined in a single application.  In any event, I used to receive jobs that included multiple applications that involved the same invention (and contained a lot of copy/paste), but now all appear in a single application. I speculate that the cause may have been  some regulatory change in Japan, perhaps a reflection of PCT or USPTO regulations.

Again, this is just a casual observation and not based on any data. How do you remember it?

John Stroman

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[Dan Lucas]

Thank you for these comments John. My interest in the field is casual, as I long ago decided that although it would be possible to acquire the specialist knowledge to deal with patents I would find it difficult to differentiate myself for marketing purposes. I responded to Warren out of a place of curiosity and unabashed ignorance!

Warren, your thoughts?

Regards,

Dan Lucas

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