Starting today, changes to the Federal Rules of Civil Procedure take effect that will dramatically alter patent litigation.
Form 18 is Gone. The changes eliminate Rule 84 and the Appendix of Forms linked to that rule. Up until yesterday, Rule 84 and the bare-boned model patent infringement complaint at Form 18 arguably held patent owners to a remarkably low pleading standard. Today, Form 18 is gone and a patent infringement complaint (like all other complaints) "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"1 There is much speculation as to how the "plausibility" standard will be applied to patent infringement litigation.
Big Discovery Changes in Patent Litigation. Discovery is one of the most expensive stages of patent litigation. Both the scope and conduct of discovery have changed under the new rules. For example, the amendments to Rule 26 attempt to streamline discovery by keeping it "proportional" to five factors, such as "the burden or expense of the proposed discovery" and "the importance of the discovery in resolving issues in the litigation." However, other factors allow the court to consider litigants' disproportionate "relative access" and "resources," and it remains to be seen how courts will construe these phrases in patent suits brought by non-practicing entities. Importantly, gone from Rule 26 is the old "reasonably calculated to lead to the discovery of admissible evidence" standard, taking with it nearly 70 years of precedent construing that phrase as the very definition of the scope of permissible discovery. These amendments are designed to "decrease the cost of resolving disputes without sacrificing fairness." The changes have caused several jurisdictions to rethink local patent rules and traditional patent discovery strategies. Chances are that litigants and their counsel will be facing new challenges in predicting the outcomes of discovery disputes and defining the scope of permissible discovery information in patent litigation.
Extending Responsibility to the Parties and their Counsel. The discovery amendments build upon the amendments to Rule 1. Until yesterday, Rule 1 required that the Federal Rules be "construed and administered to secure the just, speedy, and inexpensive determination of the action and proceeding." With just a few simple word changes, the new version of Rule 1 applies not only to the court's construction and administration of the rules, but also to the parties' use of the rules. Specifically, the parties should engage in discussions to "discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay." The Committee emphasized "the importance of cooperation in reducing unnecessary costs in civil litigation." The changes to Rule 1 impose an express responsibility on the parties and counsel. What that responsibility may be and how the courts will utilize this change to encourage cooperation and reduce litigation costs remains unclear.
Much, Much, More. Today's amendments contain substantial revisions to Rules 1, 4, 16, 26, 30, 31, 33, 34, 37 and 55 of the Federal Rules of Civil Procedure beyond just those discussed above.
The full Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure is available here.