Clients clamping costs is an easy place to point a finger, and that certainly is happening, but a few other factors are in play.

Obzilla (KSR) has repeatedly wrecked havoc since hatching in spring 2007, and gives pause to plaintiffs before plunging ahead. Patent Hawk has enjoyed having Obzilla as a dancing partner, with a 95% success rate for clients in invalidating patents since KSR.

The best dockets filled up, most notably the Eastern District of Texas (EDT).

Central District of California 2008 filings dropped to 198, nearly 39% off 2007. EDT filings dipped 21%, to 291. But the Northern District of California, for the first time, had more patent infringement filings than the Central District (LA). This could be attributable to an increase in declaratory judgment motions. Northern California, itself something of a rocket docket, is considered "defendant-friendly." Northern California originated expeditious patent court procedural rules, which were subsequently adopted and adapted in EDT and other districts.

With time to trial lengthening, the ITC has become a more popular forum, though, with few magistrate judges, who do extensive work on every case, the ITC is even more easily bogged down than the district courts. And the ITC only applies in import cases.

Time to trial has just taken another whack with the CAFC TS Tech ruling, throwing into confusion plaintiff deference for venue. Transfer invariably means delay to trial, not to mention transfer to a less efficient district. But the impact of TS Tech has yet to be felt.

Bilski cast a very dark cloud over business method and software patents. While that just happened at Halloween, the trick has been no treat for that sector of patents that have been hyperactive the past few years.

Bottom line, as Bill Clinton used to say, "it's the economy, stupid."  Claude Stern of Quinn Emanuel Urquhart Oliver & Hedges, noted that slowdown in filing is with businesses, not inventors and non-practicing patent holders, who Stern thinks might have a better shot for settlement as firms shy from the expense of patent litigation in the teeth of a recession. Stern related of companies cutting their law department budgets by 20%, clients asking for price reductions in the form of lower hourly rates, fixed prices and monthly maximum payments. "There is much greater consideration being given on how those cases should be run and be brought."

Source: The National Law Journal