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The Storm Before the Calm Part II

On October 30, 2015, in our post “The Storm Before the Calm,” we predicted that the number of patent infringement suits filed in district courts would be way up in November. We believed that we would see this spike, in part, as plaintiffs rushed to file their lawsuits ahead of the December 1, 2015, changes to the Federal Rules. These changes eliminated Form 18, the bare bones patent litigation complaint, that patent plaintiffs have heavily relied on in recent years. From now on, plaintiffs will need to include enough detail to ensure that their claims are “plausible.”

Now that November is behind us, were we right? Yes—there was a huge spike in cases filed.  Below is a chart showing district court filings in November for the past five years and, as you can see, November 2015 is one for the record books. It even surpassed November 2013, the year that set the record for the total number of cases filed. 

We now have a large volume of cases making their way through the system and two major questions are left to be resolved in the coming months. First, will courts apply the rules retroactively to require plaintiffs to amend their complaints to include more detail? Second, what does it really mean to set forth a “plausible” claim in a patent complaint? As always, we will keep you updated on the answers as they develop.

About the author:

Aaron Charfoos is a member of the Intellectual Property Group in Dykema's Chicago office. Mr. Charfoos concentrates his practice on complex patent and commercial litigation, as well as, counseling clients on the development of intellectual property portfolio strategies. If you have any questions regarding this article, or any other IP-related needs, please contact Aaron at acharfoos@dykema.com or (312) 627-2573.