Brian Pomper

WASHINGTON (Legal Newsline) - Changes to the Federal Rules of Civil Procedure will go into effect next month, with significant implications for patent plaintiffs and their attorneys.

The changes were initially approved by the Judicial Conference of the United States in September 2014.

The Judicial Conference is the national policy-making body for the federal courts. It is charged with studying the operation and effect of the general rules of practice and procedure in the federal courts, among other things.

To promulgate an amendment to a rule or form, the appropriate advisory committee must first consider and approve it, then the Committee on Rules of Practice and Procedure. Following that committee’s approval, proposed amendments must be considered and approved by the Judicial Conference, the U.S. Supreme Court and Congress.

In April, the Supreme Court approved, without comment, those changes approved by the Judicial Conference.

Congress had the ability to overturn the changes, but has not intervened.

Unlike the previous edition of the Federal Rules, which allowed patent plaintiffs to file what some would describe as “bare-bone” complaints, patent plaintiffs, come Dec. 1, will be subject to the same heightened pleading standards required of plaintiffs in other types of civil litigation.

“This means that now, patent law, for the first time, is going to be subject to the same pleading requirements as everyone else,” said Brian Pomper, executive director of Innovation Alliance, a group made up of research and development-focused companies.

“This is huge.”

Pomper said his group fully supports the rules change, calling it a “better approach” than any of the legislation currently stalled in Congress. Many of those patent reform bills call for heightened pleading standards.

Under the prior edition of the Federal Rules of Civil Procedure, Rule 84 provided attorneys with model forms, including Form 18, a model patent complaint, which attorneys could rely on in filing suit.

Form 18 required plaintiffs to include only minimal details, such as the patent number, the name of the patent and an allegation of infringement.

It did not require a plaintiff to identify any asserted patent claim or any accused product by name.

The form has “virtually no detail,” Pomper said.

“It basically comes down to, hey, I have a patent, you violated it, so pay me,” he said. “It was totally lacking in proportionality, a very low standard of pleading.”

In K-Tech Telecommunications Inc. v. Time Warner Cable Inc., the U.S. Court of Appeals for the Federal Circuit found that “a proper use of a form contained in the Appendix of Forms effectively immunizes a claimant from attack regarding the sufficiency of the pleading.”

The court ruled that the forms “control.”

“Basically, if you used this form in the appendix, you’re good to go if you’re a plaintiff,” Pomper explained. “Defendants can’t get a motion to dismiss.”

But the pleading standards were very much at odds with other standards established by the Supreme Court in Bell Atl. Corp. v. Twombly in 2007 and Ashcroft v. Iqbal in 2009, Pomper explained.

Twombly, in particular, heightened the pleading requirement for federal civil cases, requiring that plaintiffs include enough facts in their complaint to make it plausible -- not merely possible or conceivable -- that they will be able to prove facts to support their claims.

However, the Federal Circuit ruled that Form 18 rendered Twombly and Iqbal inapplicable to patent cases.

Now, in two short weeks, under the Supreme Court’s recent adoption of changes to the federal rules, Rule 84 will be eliminated. As a result, Form 18 can no longer be relied upon. Plaintiffs, instead, will have to comply with the Twombly and Iqbal pleading standards.

“From our perspective, we know the system isn’t perfect,” Pomper said. “But we feel this issue, in particular, has been addressed in a way that makes sense.”

What doesn’t make sense, he said, is legislation that “imposes a straight jacket” on judges.

Pomper argues that certain patent reform bills in Congress -- H.R. 9 or the Innovation Act and S. 1137 or the PATENT Act, for example -- require too much detail, making pleadings expensive to produce and potentially creating more litigation.

Fortunately, the patent reform bills have stalled, Pomper said.

“It’s been pretty quiet,” he said.

But he expects a “renewed push” at the early part of next year.

“I think when H.R. 9 initially passed at the end of 2013, a lot of people thought [patent reform] was going to be a slam dunk,” Pomper said. “The demanders -- the big companies -- had their ducks in a row and people within the patent community were caught flat-footed. No one had really heard the other side.

“We really had to educate people on the Hill. Now, all of a sudden, it’s become a lot more controversial.”

From Legal Newsline: Reach Jessica Karmasek by email at

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