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Following the Supreme Court’s decision in TC Heartland v Kraft Food Group Brands in May 2017, the patent litigation market has seen a marked shift of filings away from the Eastern District of Texas towards the District of Delaware and the districts of Northern and Central California. Firms have seen an overall decrease in district court litigation, caused partly by the popularity of inter partes reviews before the Patent Trial and Appeal Board (PTAB). The growing phenomenon of patent litigation financed by specialized companies, especially private equity investors and hedge funds, has so far not reversed this trend.

The patent litigation landscape might change again soon, however, depending on the outcome of the currently pending Supreme Court case Oil States Energy Services v Green’s Energy Group, regarding the constitutionality of the inter partes review statute. Most firms consider the end of inter partes reviews an unlikely outcome, but there will still be a great deal of interest in the outcome; a verdict is expected during 2018.

The biggest battlefield in patent disputes is infringement litigation between competitors, with firms reporting a notable decrease in patent troll cases. The life sciences and technology sectors remain at the forefront of patent disputes, especially with regard to biosimilars and connected cars.

ITC litigation seems to be picking up again, as the intensity of discovery, the rapidity of the process and the immunity of proceedings from concurrently pending inter partes reviews combine to make the International Trade Commission a more popular venue than the slower district courts.

Faced with the threat of losing patents in inter partes reviews, companies are investing more in prosecution work. Biological patents and technology patents in relation to autonomous vehicles were particularly busy prosecution objects. Fintech-related work is also increasingly in demand.

On the licensing side, standard essential patents remain an important asset in a market that uses licensing as a tool for incremental patent portfolio development, a development towards which the increase in carve-out deals has most likely contributed. As in litigation and prosecution, the pharmaceutical and biological space is a dominant sector.

Technological advances continue to shape the copyright space, and new content distribution services are facing challenges to their business models. The major mechanical royalty rate-setting proceedings for music streaming services offered by Google, Apple, Amazon, Spotify and Pandora will determine the compensation for artists for the next five years. The long-running Oracle v Google battle is now on appeal and its consequences will test the limits of the fair use doctrine; after a series of victories for the defendant, the case will finally settle whether Google can copy Oracle’s software, Java, for use in its commercial Android products. More traditional copyright claims continue to keep firms busy, while there has been an uptick in work arising from user-generated content and its use in news reporting.

The trademarks arena has seen a significant amount of activity in the last year following the Supreme Court’s 2017 decision in Matal v Tam, which dictated that certain provisions in the Lanham Act prohibiting the registration of disparaging trademarks violates the First Amendment. Firms also cited the increasing overlap of laws pertaining to trademarks, trade dress and design patents, which provides greater opportunity for IP-holders to protect their assets. Firms also noticed an increase in cross-border regulatory and compliance work relating to data privacy and cybersecurity in matters involving EU protocols.

In the trade secrets arena, despite the initial excitement over the Defend Trade Secrets Act, lawyers did not report a significant increase in actions under the new federal legislation. What was commented upon, however, was the continuing knock-on effect of the 2014 Supreme Court decision in Alice Corp v CLS Bank International, which imposed stronger restrictions on the patentability of software; firms have seen an uptick in trade secrets work and mandates that combine patent and trade secret defenses as a result of the ruling.

The case attracting the most comment and controversy in 2017 was Waymo v Uber, brought by autonomous car developer Waymo (which is owned by Google’s parent company Alphabet) against Uber; the case, which settled in February 2018, alleged that an engineer who left Google to set up his own company - a company which was later bought by Uber - stole designs relating to Waymo’s LiDAR technology, and further that that technology was used in Uber’s driverless cars.

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