The changes, a rewrite of the Federal Rules of Civil Procedure, were approved by the U.S. Supreme Court in April and eliminate a rule that allowed filers of patent suits to rely on a bare-bones model complaint.
Under the new rules, complaints alleging direct patent infringement will be subject to the pleading standards established by the Supreme Court's landmark Twombly and Iqbal decisions, which require plaintiffs to demonstrate that their claims are plausible.
The shift is expected to make it tougher for nonpracticing entities and others who have been viewed as using the model complaint, known as Form 18, to their advantage, filing vague lawsuits in hopes of scoring a quick settlement.
The shift in rules is part of a broader set of a changes approved last year by the Judicial Conference of the U.S., the policymaking body for the federal court system, and meant to modernize the Federal Rules of Civil Procedure. Among other things, the conference streamlined the discovery process and clarified the remedies available for the loss of electronically stored information.
But the abolition of Rule 84, which provides model forms that attorneys can rely on in several situations, including Form 18, is of particular concern in patent litigation.
On Form 18, a plaintiff had to include little more in a patent complaint than the name and number of the patent and an allegation of infringement. The form has been discussed in previous court rulings, including a 2012 decision at the Federal Circuit.
That court ruled that because the form is part of the Federal Rules of Civil Procedure, complaints alleging direct patent infringement don't need to comply with Twombly and Iqbal.
Although plaintiffs won’t be able to rely on Form 18 any longer, attorneys say it may be many months before litigants have a firm grasp on how much detail must be included in complaints under the new system.
At least initially, the rules will likely vary between districts and judges as courts work to resolve what the standard will be. Attorneys also expect to see an uptick in motions arguing that direct infringement suits don't comply with the Supreme Court's precedent.
"Many, many people will try to get complaints for direct infringement dismissed," Ethan Townsend of Morris Nichols Arsht & Tunnell LLP told Law360 in October.
--Additional reporting by Ryan Davis. Editing by Brian Baresch.
