Heightened pleading standards in patent litigation reform — Requiring identification from the start

This article addresses changes to the pleading standards, with a particular focus on H.R. 3309

This is the second of three articles addressing proposed legislation to curb abusive patent litigation. The previous article addressed a proposed change to the language allowing for shifting attorneys fees to prevailing parties, while the remaining article will address proposed discovery rules. This article addresses changes to the pleading standards, again with a particular focus on H.R. 3309 (the “Innovation Act,” originally introduced by Representative Goodlatte).

Under the current notice pleading standards, a short, plain, plausible statement of the plaintiff’s claim is necessary to meet the requirements of Federal Rule of Civil Procedure 8(a). The Supreme Court decisions of Bell Atl. Corp. v. Twombly and Ashcroft v. Iqbal, and their progeny, raised the bar with respect to what is required to plead a case and open the door to discovery. After these decisions, however, there was disagreement about what is required in patent cases, because Form 18 from the Appendix of Forms to the Federal Rules of Civil Procedure provides an exemplar of how to plead a patent case. The pleading standard articulated by the Court appeared to require more detail than Form 18, so the question was, could a plaintiff still use Form 18, which merely requires “a statement that defendant has been infringing the patent ‘by making, selling, and using [the device] embodying the patent?’” Or, to state a plausible claim, must a plaintiff now plead facts to support a conclusion that every element of every asserted patent claim is met, for each accused product or process?

Contributing Author

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Josephine Benkers

Josephine Benkers is a partner at Quarles & Brady LLP and practices in the areas of intellectual property and commercial litigation. Her experience in intellectual...

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