On December 1, 2015, new amendment to the Federal Rules of Civil Procedure went into effect. For intellectual property practice, the most significant change may be the elimination of the “Forms” section of the rules and Rule 84. Previously, pleadings similar to Form 18 for direct patent infringement were sufficient to satisfy the pleading standards in federal court. Now, based on previous decisions of the Federal Circuit regarding indirect infringement, commentators suggest that patent complaints will need to provide more specific factual information in order to survive early motion practice. The Federal Circuit has not yet addressed this question, but early district court decisions appear to be applying the amendments inconsistently. Some decisions have ruled that more specific fact-based allegations are required, while others have noted that the Advisory Committee comments state that the amendments were not intended to alter existing pleading standards and therefore continue to use Form 18 as the benchmark.

Although an initial complaint is one of the first steps in a patent lawsuit, it has significant procedural and substantive consequences depending on how it is drafted. Pending bills in the current Congress, the Innovation Act (H.R. 9) and the PATENT Act (S. 1137), would change patent infringement pleading requirements by amending the patent statutes in Title 35 of the United States Code.

Additional changes to the Rules relate to the scope of discovery (Rule 26), timing and objections relating to requests for production or inspection (Rule 34), and sanctions relating to electronically-stored information or “ESI” (Rule 37). To view the presentation, visit: Federal Rules Update from Woodard, Emhardt, Moriarty, McNett and Henry LLP