Why it matters: November 30, 2015, the Monday after Thanksgiving, saw a dramatic upsurge in patent infringement lawsuit filings nationwide as patent holders, the majority of which proved to be nonpracticing entities (a.k.a. patent trolls), rushed to take advantage of existing plaintiff-friendly pleading standards for patent claims under the Federal Rules of Civil Procedure before their elimination via amendments that took effect on December 1, 2015. Black Monday, indeed.

Detailed discussion: On November 30, 2015, patent holders filed what is believed to be a record high of infringement complaints in order to get the benefit of existing favorable pleading standards for patent claims under the Federal Rules of Civil Procedure (FRCP) before their elimination by way of amendments that took effect on December 1, 2015. While the amendments to the FRCP dealt largely with rules relating to the conduct of discovery—in particular, e-discovery—they also served to eliminate in its entirety FRCP 84, which established the concept of "standard forms" for all types of pleadings, including the Appendix of Forms incorporated therein. One of the forms so eliminated was Form 18, entitled the "Complaint for Patent Infringement," which allowed a patent holder to file nonspecific patent infringement claims alleging only the barest of facts (basically, patent ownership, claimed infringement of that patent, and resulting damages). Form 18 was especially popular with so-called patent trolls because it enabled them to easily file identical, nonspecific "cookie-cutter" suits against multiple parties.

In anticipation of Form 18's elimination on December 1, there was a rush to file patent infringement suits utilizing Form 18 on November 30 before it disappeared. Corporate Counsel reported that, based on data compiled by legal analytics company Lex Machina, a record number of 259 patent infringement lawsuits were filed on November 30 alone—more than "15-18 times the average number filed in one day," the majority of which were filed by nonpracticing entities. By contrast, the article pointed out that on the Monday after Thanksgiving in 2014, only 14 such patent infringement suits were filed. Moreover, the data showed that almost 80% of the patent infringement suits brought on November 30 were filed in the Eastern District of Texas, known to be plaintiff-friendly. The data also showed that the surge in patent infringement lawsuits actually began in mid-November, with 572 patent suits filed nationwide in the last two weeks of that month (as compared to 176 such suits filed during the same time period in 2014).

With Form 18 eliminated but no new legislative pleading standards for patent cases yet put in place (patent reform legislation addressing this is pending before Congress), it is expected that the district courts in patent cases will now look to and interpret (based on the facts before them) the pleading standards established by the U.S. Supreme Court in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009), which together require plaintiffs to plead detailed facts with sufficient specificity so as to "plausibly" support their claims for damages.

See here to read the 12/1/15 Corporate Counsel article by Lisa Shuchman entitled "Trolls Rush In to Avoid Fed Procedure Change."