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Changes in Patent Infringement Litigation

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On December 1, 2015, a new set of amended Federal Rules of Civil Procedure became effective after a lengthy rule-change process.  As part of the new regime of rules, a widely used form for filing patent infringement actions has been eliminated.  In the past, a form patent complaint would be used to allow patent holders to set the judicial process in motion without having to be overly particular in spelling out the alleged theories of infringement.  These forms are longer allowed.  New complaints must comply with the Supreme Court’s standard as laid out by the “Twiqbal” set of cases.  Patentees seeking for enforce their property rights in court will need to particularly allege enough facts to make a claim for relief plausible, or risk watch their suit be dismissed on a Rule 12(b)(6) motion.

In early November, the Federal Circuit issued a decision on an IPR proceeding which could affect future litigation.  In Belden v Berk-Tek, the defendant appealed the Patent Trial and Appeal Board’s (PTAB) ruling which upheld two of the six contested claims.  In the process, the Federal Circuit is supposed to give the PTAB’s factual findings substantial deference while reviewing findings of law de novo.  However, in its opinion, the Federal Circuit has suggested that a “motivation to combine” may be a question of law, rather than a question of fact as its currently treated.

With the change in the Federal Rules and the possible shift in Federal Circuit thinking, patent infringement litigation is like to change in the coming months.  However, will the new changes be a boon or a bane for patent holders?