The amendments to the Federal Rules of Civil Procedure took effect December 1, 2015. The primary focus on the amendments is to move toward proportionality and also the elimination of the bare-bones form patent complaint. (Leading to something of a rush on filing on November 30).
One hope is that the amendments will reduce discovery costs — leading to a “just, speedy, and inexpensive” process as required by FRCP R. 1. Changes include:
- Eliminating the provision allowing for discovery of information “that may lead to the discovery of admissible evidence.”
- Emphasis on a balancing test to limit the scope of discovery.
- Requirement for more details when documents are being withheld due to an objection.
Patent cases are typically seen as “big” cases, however, there is a possibility that some judges will begin teasing out the big cases from the small cases and apply the proportionality construct in that context.
“2. That the foregoing amendments to the Federal Rules of Civil Procedure shall take effect on December 1, 2015, and shall govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.”
Pretty much every case filed in ED Texas on November 30th should be kicked back to the plaintiffs with a simple message “Your complaint needs to meet these new rules. Please review for compliance. Thanks.”
NAILED IT
Eat your hat, Professor 😉
Thanks – I still don’t think that the removal of the form complaint is going to be that big of a deal, but I’ll do a study… 🙂
Sorry, it’s not immediately apparent in my post that there were two links, but the first part is a link to an Ars Technica article (which you may have seen already) indicating a significant increase in filings in the run-up to December 1, primarily by NPEs. But I’d also love to see your take on it, of course.
Yes, because allowing amended complaints can cure the insufficient factual detail in the original complaint. D.C.s seem likely to liberally allow complaints to be amended, if timely objected to, given the now very uncertain question of what more is required under current Sup. Ct. authority now that FRCP Form 18 is no longer available. [Note the reported large number of new complaints filed just before the Dec. 1 date on which Form 18 disappeared.]
It seems likely that complaints should now at least require, as a minimum, recital of at least one specified claim allegedly infringed by at least one specified product, unlike many present complaints?
Paul,
I note this in the ORDER with respect to pending cases. What happens in E.D. Tex., I can’t guess.
“2. That the foregoing amendments to the Federal Rules of Civil Procedure shall take effect on December 1, 2015, and shall govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.”
Yes, thanks, and that “insofar as just and practicable” adds another layer of confusion for challenges to recent complaints, on top of the new need to try to interpret and apply the Sup. Ct. decisions on proper FRCP 8(a)(2) complaint content in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, which are on very different fact situations.
Ergo, a new field day for patent suit defense attorney’s motion billing opportunities, even though [as noted] such motions may rarely be case-dispositive.
Paul,
I am more upbeat. It is true that the Iqbal pleading standard is fairly easy to satisfy, except probably for process patents. However, if a judge insists that the facts are really well-plead and interprets plausible to mean more than a remote possibility, then some really weak cases could be dismissed early on. Even if not, more specific infringement contentions would come to the fore sooner, which would save time and resources in the end.
Since 90% plus of all cases settle, anything which gets to that point sooner is better for both plaintiff and defendant.
Trouled, I would also hope that “more specific infringement contentions would come to the fore sooner, ..[and] save time and resources” and perhaps earlier settlements.
Perhaps it might even support more FRCP Rule 11 sanctions when it turns out that there is no meat to put on the bones of unsupported, un-investigated, complaint allegations?
But query if that many complaints will actually get dismissed that early just for pleading inadequacy, since most patent owners would make some kind of response* to that challenge, and how many judges will want to get actively into that dispute that early in a law suit?
*and amended complaint and/or an argument that discovery is needed?
P.S. If this practice change results in more identification in the complaint of specific claims allegedly infringed, that might help in earlier and more targeted prior art searches and IPRs?
Dennis
I think you are right: people have read this to believe that it imposes some new specificity requirement: it doesn’t. It simply abrogrates the old Forms; there is nothing to prevent someone from filing a barebones complaint to get on file. If Ds want to challenge, they’ll have to file a motion, and there is no guarantee a judge will agree with their position, particularly if you identify a specific claim and a specific product. In any event the P will be given liberal allowance to amend, or re-file. All of this again, will drive up litigation costs, yet another predictable consequence of the rabid anti-patent movement that doesn’t understand that all such legislation at its root is based on increasing legal fees… isn’t “reform” wonderful?
Not to disagree, but simply to note that I think this is one of those situations where in-house counsel could do a better job of controlling litigation motion practice and its costs.
Why could not the text of a motion challenging the sufficiency of a bare bones patent suit complaint from now be almost as simple and cheap as this?:
“The subject complaint is factually deficient on its face under the Sup. Ct. requirements of Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly [cites]. The defendant in this case has sold at least XXXXX different products since the patent in suit issued, and yet the complaint fails to even indicate which of these products, much less which parts thereof, are being accused of patent infringement. Furthermore the patent in suit has XXX claims, yet the complaint fails to even indicate which of these claims the defendant is accused of infringing. Former FRCP Form 18 was eliminated for no longer being sufficient in patent suits like this.”
[Of course in-house counsel would also have to insure that a lot of money is not going to get wasted by O.C. on mandamus attempts when these motions get ignored, denied, or inadequately responded to.]
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