PublishedMay 19, 2015

ICYMI: SCOTUS Approves Getting Rid of Form 18 & Why It Matters

A while back I wrote about some amendments to the Federal Rules of Civil Procedure that the Judicial Conference approved. The most notable change for patent law was that the amendments would get rid of all of the forms in the rules, including the one for patent cases (Form 18).

If you’ve been following the patent reform debate closely, you may remember that the Federal Circuit relied on Form 18 in its decision in In re Bill of Lading Transmission. The court held that a complaint in a patent case just needs:

(1) an allegation of jurisdiction; (2) a statement that the plaintiff owns the patent; (3) a statement that defendant has been infringing the patent ‘by making, selling, and using [the device] embodying the patent’; (4) a statement that the plaintiff has given the defendant notice of its infringement; and (5) a demand for an injunction and damages.

The Supreme Court approved the amendments a few weeks ago. That means that, barring Congressional action, they’ll go into effect this December, and Form 18 will be no more.

While this is useful, it’s not enough. Here’s why.

In a blog post last year, I wrote about about the prolific patent troll eDekka, which filed well over 100 complaints in 2014. Not one of them gave any useful information to the defendants. Most of the complaints were filed in the Eastern District of Texas.

And that’s the problem. Judges in the Eastern District of Texas tend to interpret the rules in a very patent owner-friendly way. For example, Judge Gilstrap said in an interview that the Octane Fitness decision on attorney fee awards wouldn’t change the way he does things.

We should expect that if they’re not given any clear requirements, the Eastern District of Texas will continue business as usual. That’s why we still need heightened pleading as part of patent reform.


Matt Levy

Previously, Matt was patent counsel at the Computer & Communications Industry Association

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