by Dennis Crouch
Changing the Rules of Civil Procedure: The Federal Rules of Civil Procedure operate with the force of law, but their implementation procedure is unusual. In 1934, Congress adopted the Rules Enabling Act that shifts power in drafting the rules to the courts. The process starts with the Judicial Conference that proposes any rule changes. The Supreme Court can then vote to adopt the proposed changes. Congress did not fully abdicate its power. Rather the statute provides Congress the power to reject the Supreme Court’s proposed rules. The default, however, is that rules will become effective if Congress does nothing. Timing-wise, rules adopted by the Supreme Court by May 1 will become effective on December 1 of that same year.
Pleading Standards and R.84: In Iqbal and Twombly, the Supreme Court raised the standards required for pleadings (complaints, answers, etc) to now require that facts be pled sufficient to make relief plausible rather than mere conclusionsleading to conceivable relief. In the patent context, for instance, merely pleading that “defendant infringes the the ‘XYZ patent” would seemingly be insufficient without adding more factual context. However, Iqbal and Twombly have not been applied in the patent infringement context because the Rules include a special loophole known as Rule 84 and the Form Complaints. Basically, the rules of civil procedure include an appendix of form complaints that include Form 18 – a patent infringement complaint – and Rule 84 declares that complaints that follow the form will be deemed sufficient.
In many cases (but certainly not all), patentees provide bare-bones complaints that fail, for instance, to identify which products infringe which claims of which asserted patents. Some courts have adopted a requirement that such detail be provided in an early mandatory disclosure, but many courts delay that requirement for months.
Eliminating R 84 and the Form Complaints: The September 2014 Judicial Conference proposal would eliminate R.84 and the form complaints. The result then would be that patent infringement complaints would be judged under the higher standard of Iqbal and Twombly – just like all other federal cases.
Up to now, the Supreme Court has not adopted or otherwise acted on the proposal. Under the statute, the Court’s delay has no meaningful impact because it cannot be implemented until December 1 2015 at the earliest.
Supreme Court Racing against Congress: However, the Supreme Court is not operating in a vacuum. Rather Congress is also considering its own amendments to the rules that would go well beyond Iqbal and Twombly. Notably, the Goodlatte proposal would require that a patent infringement complaint identify with specificity how each limitation of each asserted claim is infringed by each accused instrumentality.
Supreme Court action here will largely serve to eliminate the demand for Congressional pleading reforms. I see that as strongly positive because of problematic features of the Goodlatte pleading proposal. However, time will tell which side wins this slow-motion race.
See also: Dennis Crouch, Heightened Pleading Requirements: Patent Reform through the Supreme Court and Judicial Conference, Patently-O (2014); K-Tech Telecommunications v. Time Warner (Fed. Cir.2013)