First of all, new filings are down - substantially. There were approximately 2,500 patent cases filed in the Eastern District in 2015. But through the end of the first quarter of 2016 less than 300 new patent cases were filed. Annualized to around 1,100 cases that represents a 56% reduction in patent case filings from 2015, representing a reduction to just under 2014 filing levels. The number isn't a new one - when I checked filings after the first several weeks of the year I came up with a 56% reduction then as well, so the level of activity is steady.
But the source of the reductions is pretty clear - it is coming disproportionately - in fact overwhelmingly - from the largest filers, meaning the plaintiffs filing cases against large numbers of defendants, or as I refer to them "bulk filers". For example, I checked the three law firms that filed the most patent cases in the Eastern District last year to see what they are up to in 2016. Last year they accounted for approximately a third of the 2,500 cases - but in the first quarter of 2016, the same firms filed only seventeen (17) cases. That annualizes to a 94% reduction by top three firms. Nor do they appear to be filing elsewhere. The firm that filed the largest number of cases in the EDTX last year (over 400) has filed a whopping seven this year after its client eDekka was tagged by Judge Gilstrap for fees under 285 earlier this year (incidentally eDekka was the largest single filer the past two years, and has I believe the largest single 285 award, and largest number of defendants receiving an award under 285 of any case in the nation, so there is a symmetry there for those of us that look for such things). But of interest, the firm has filed only four patent cases in other districts so far this year, so it appears that it is not shifting its filings elsewhere.
For those interested in cause and effect, the continuing string of 101 dismissals in the district (there was another the other day from Marshall that I'll get around to posting on hopefully end of this week) as the motions make it to the top of judicial desks might have something to do with the reduction in filings, as might fee awards like that in eDekka. But I would also point out that the enormous number of "November 30" filings due to the 2015 FRCP amendments to the discovery and pleading rules artificially inflated the numbers as well. And unnecessarily so, since at least one order I have seen from Judge Gilstrap recently made clear that he was applying the relevant amended rules in that case to pre-December 1 filings. In fact, I have never agreed with the logic of the pre-Dec. 1 filings, but that's an issue for another post. (I wouldn't call it the filing equivalent of a face piercing, but if you want to I'll back you up). So filings have resumed the slight downward trend they had before last year, and if reviewing the recent activities of bulk patent filers interest you, you may want to find another hobby to fill your spare time. Because it's not happening here, and as best I can tell, it hasn't gone anywhere else in large quantities either. As I hypothesized in my Texas Bar Journal article in January, it was going to take a few more months for the effect of 101 and 285 to be known fully enough to affect filing patterns in Texas federal courts, but I think that's now happened.