New Federal Rules of Civil Procedure

After a long rule-change process, a new set of amended Federal Rules of Civil Procedure (FRCP) will become effective on December 1, 2015.

Directly impacting patent cases is the elimination of the form patent complaint that allowed patentees to file a complaint without particularly spelling out any theories of of infringement.  New complaints will be required to satisfy the Twiqbal standard of alleging facts that make the claim for relief plausible.  In the patent situation, courts may begin requiring at least a particular statement of which patent claims are being infringed and perhaps at least one claim chart.

The amendments also include changes a set of case management and discovery rules to better streamline that process and focus on proportionality.


10 thoughts on “New Federal Rules of Civil Procedure

  1. 6

    Should be interesting to see how big the spike in November filings turns out to be.

  2. 5

    Poor Ho Keung Tse. What do you do if you’re a “little guy” and trying to scrape some money off the Big Guy’s shoes with your awesome patent but you lose in district court, you lose your appeal, and the Supreme Court refuses to hear your case?

    Easy! You just pretend that nobody truly understands your awesome invention so you get a do-over! Just file the original lawsuit all over again.

    Tse next relies on language from Blonder-Tongue to argue that, because the Google court “wholly failed to grasp the technical subject matter,” Tse was unable to fully and fairly litigate the validity of the ’797 patent in the prior case.

    Fun times. Gee, I wonder what sort of information is floating around out there that leads all these “little guys” with their patents to believe “nobody understands the technology or the law” except for them? Where do they come up with that stuff?

    1. 5.1

      TSE v. APPLE INC. (Fed Cir. 2015)

      Tse, of course, sued a bunch of other companies as well because his awesome “innovation” was that important and wide-reaching. Everybody copied him! You see, he’s a really smart guy! He knows a lot about technology and patents. He just has a wee problem with fancy legal stuff like “no, you really did lose.”

  3. 4

    What sort of sanctions are appropriate for dragging multiple defendants into a courtroom on the theory that the defendants directly infringe an apparatus claim when they sell software? Legal fees doesn’t seem to cut it, really.

    1. 4.1

      Consider that some of the defendants were “little guys”. Oh wait — those “little guys” aren’t the ones that anybody needs to care about. Probably just a bunch of shifty “copyists” that needed a little lecture about how serious patents are from people that are really, really serious about patents. I mean, look at their awesome infringement theory. You can’t just make that kind of complicated theory up. I mean, not in a five seconds. It takes like ten or fifteen seconds, at least.

  4. 3

    Hey all you “little guy” patentees out there: please don’t forget to include those all-important emotional distress claims in your complaint! You know, that super terrible distress caused when some “big guy” infringes your patent and doesn’t give you the money that you surely deserve because, hey, you’re just a sensitive “little guy”.

    It works great for establishing your crediblity and seriousness.

    Just ask Dr. Yufa.

    YUFA v. HACH ULTRA ANALYTICS, INC. (Fed. Cir. 2015)

  5. 2

    Recall text in the Carpenter case:

    Twombly and Iqbal require that a complaint for patent
    infringement contain sufficient factual allegations such
    that a reasonable court could, assuming the allegations
    were true, conclude that the defendant infringed

  6. 1

    What does everyone think the net effect of this will be on patent litigation? I know that patent reform proponents, particularly the EFF, believe that Form 18 was heavily abused by NPEs to harass “low hanging fruit” defendants. I don’t know how much truth there is to this, any ideas?

    My general sense is that, for the majority of cases, that the bigger change will be the law develops around what level of pleading is needed to satisfy Twombly/Iqbal, particularly in how creative the Fed. Cir. gets.

    1. 1.1

      Yes, presumably first someone will have to get D.C. judges to reject the existing Fed. Cir. cases supporting vague FRCP Form 18 complaints, and require amended complaints that will at least assert that “at least claim X of patent Y is infringed by at least specific product Z” and then see if a Fed. Cir. panel is going to demand any more that that?
      I would think the new discovery rule provisions would have a more significant impact?

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