Patent Litigation Developments to Watch in 2016

Several developments in patent litigation could have a significant impact in 2016. Following the Supreme Court’s 2014 decision in Alice Corp. v. CLS Bank International, defendants have been successfully using the ruling to dispose of cases under Section 101 of the patent statutes. Decisions this year may cause the pendulum to swing back toward patent holders, as courts define the limits of the ruling.

Pleading standards may be set to change as well. Recent amendments to the Federal Rules of Civil Procedure may have raised the standards for patent complaints to levels applied in other types of cases. These are known as the Twombly and Iqbal standards. District court decisions this year will set the tone for how the amended rules should be interpreted.

The Federal Circuit’s current two-part test for enhanced damages based on willful infringement may be struck down. The Supreme Court is set to decide, in a pair of cases called Stryker and Halo, whether to reject the test currently applied by courts.

The Federal Circuit is also set to decide whether to review en banc a split panel decision in ClearCorrect, which prevents the ITC from having jurisdiction over electronic transmissions of digital data. If this decision is upheld, it could have a significant impact on the number and types of cases brought before the ITC.

The EU’s Unified Patent Court is set to go online in 2017, opening up yet another venue for patent litigation.