June 3, 2016

Commentary on Patent Litigation Best Practices: Heightened Pleading Standards Chapter

Chapter Editor, The Sedona Conference Working Group on Patent Litigation Best Practices (WG10)

Intellectual Property partner and co-chair of the Sedona Conference Heightened Pleadings Standard Team Deborah Fishman has co-authored "The Sedona Conference Commentary on Patent Litigation Best Practices: Heightened Pleading Standards Chapter," a draft chapter released for public commentary. The recently published chapter on Heightened Pleading Standards delivers guidance on the level of detail to now be included when pleading claims for direct patent infringement under the Supreme Court's Iqbal and Twombly decisions.

For many years, Form 18 of the Federal Rules of Civil Procedure gave a very basic format for pleading claims of direct patent infringement. The bright line standard provided by Form 18 largely avoided controversy over the level of detail required to plead a claim for patent infringement. On December 1, 2015, the Federal Judicial Conference repealed Form 18, opening up the possibility for disputes over how much more information is required when pleading these claims.

This Chapter on Heightened Pleading Standards provides guidance as to the level of detail to be now included with the pleadings, both from the perspective of the minimum requirements set by Iqbal/Twombly as applied to patent infringement suits, and also from the perspective of what additional information should be further encouraged from both parties to promote the efficient administration and resolution of patent disputes. All parties and the courts have an interest in avoiding extensive satellite litigation regarding the sufficiency of the pleadings, and, if adopted, the Principles and Best Practice recommendations presented in this Chapter will help streamline the pleadings process in patent cases.

The Sedona Conference (TSC) is a nonprofit research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation and intellectual property rights. The mission of TSC is to drive the reasoned and just advancement of law and policy by stimulating ongoing dialogue amongst leaders of the bench and bar to achieve consensus on tipping point issues. TSC brings together the brightest minds in a dialogue based, think-tank setting with the goal of creating practical solutions and recommendations of immediate benefit to the bench and bar.

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