SerendIPity: Dykema
Dykema Gossett PLLC
Dykema Gossett PLLC

SerendIPity: Dykema's Intellectual Property Law Blog

Intellectual Property Law Blog

News and Analysis of Legal Issues Affecting Intellectual Property

Editors

Contributors

The Storm Before the Calm

It has been widely reported that patent litigation filings have been way up in 2015, bucking the post-Alice crash in the second half of 2014. However, we anticipate that November 2015 will see an even bigger spike in patent litigation filings. Why? 

For many years, the Federal Rules of Civil Procedure and the Federal Circuit have allowed bare bones complaints to be filed in patent infringement cases, but that is about to end. Beginning December 1, patent litigations, like most other litigations, will need to follow the higher pleading standards set out in the Supreme Court’s Iqbal and Twombly cases. Under this standard, the complaint must show that the cause of action is “plausible.”

What constitutes a “plausible” claim in patent litigation is very unclear at this point and will likely require many months of motion practice at the district and appellate levels before we see a consensus forming. However, most people agree that a significant percentage of complaints filed today—with their bare-bones allegations—will not satisfy the new standard. 

That’s why we anticipate that many Plaintiffs, particularly nonpracticing entities, will not want to deal with the uncertainty of the new standard and the added cost and time from defending against a motion to dismiss. They only have one more month to file before the new rules take effect and may be working to get their complaints on file before then.

The good news for defendants, however, is that some courts may apply the heightened standards retroactively. So even those bare-bones complaints that come in before December 1 may still be at risk.

To find out more about how the new standards may impact your patent litigation strategy, please contact Aaron Charfoos at (312) 627-2573 or acharfoos@dykema.com.

About the author:

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