Patent Infringement Pleadings: An Analysis of Recent Proposals for Patent Reform - R43321

Emily M. Lanza
Law Clerk

Patent infringement is the unauthorized making, using, offering for sale, selling, and importing of a patented invention. The patent provides the patent holder with the right to protect against such infringement by suing for relief in the appropriate federal court. Litigation of a patent infringement claim begins with the filing of a complaint in federal court. Form 18 in the appendix of the Federal Rules of Civil Procedure provides a model for a patent infringement complaint. This form requires four statements asserting jurisdiction, patent ownership, patent infringement by the defendant, and demand for relief.

Commentators, legal practitioners, and patent holders disagree as to whether Form 18 requires a sufficient level of detail in the patent infringement complaint to meet the standards outlined in the Federal Rules of Civil Procedure and by the U.S. Supreme Court. Despite two recent Supreme Court rulings concerning the appropriate pleading standard, the level of particularity regarding information in the patent complaint, specifically Form 18, is a frequent issue before the courts.

Patent infringement litigation has increased over the last decade. Commentators have linked the current patent pleading requirements and the minimal level of information required to patent assertion entities (PAE), colloquially known as “patent trolls.” According to “patent troll” critics, the minimal information required in a patent infringement complaint encourages PAEs to initiate frivolous lawsuits that otherwise would not survive the initial pleading stage under a more stringent standard.

Congress has recently proposed several bills offering patent reform in this area. The recently introduced Innovation Act, H.R. 3309, and the Patent Abuse Reduction Act, S. 1013, both offer changes to the patent pleading system. These bills would provide for, among other things, heightened initial pleading requirements demanding more specific information in the complaint than required by Form 18 alone. Sponsors of the bills intend these more rigorous pleading requirements to deter “patent trolls” from filing what they deem as frivolous lawsuits. However, some commentators believe that the heightened pleading requirements would render patent enforcement impractical. Additionally, some members of the judicial branch have commented that these proposed changes trigger constitutional issues by potentially violating the separation of powers doctrine.

Date of Report: November 22, 2013
Number of Pages: 11
Order Number: R43321
Price: $29.95

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