The America Invents Act (AIA) did not solve all of the perceived problems with U.S. patent system. Indeed, it may have created some new problems because the number of patent infringement lawsuits actually increased after the passage of the AIA. This was due to the fact that AIA requires patent owners to file a separate patent-infringement lawsuit for each unrelated defendant that the patent owner intends to sue for infringement. Consequently, Congress is considering passing a new round of patent reform.
The next round of patent-reform legislation has not been finalized. Congress is currently considering a collection of bills that address various issues relating to patent reform. Six of these bills were introduced in the House this term. A seventh bill has been introduced in the Senate.
While it is difficult to predict what will be included in any final bill (or even whether any bill will actually pass both houses and be signed into law), it is likely that a final bill will address heightened pleading standards for patent-infringement complaints, fee shifting, limitations on pre-claim construction discovery in patent-infringement lawsuits and heightened standards for demand letters. Each of these issues will be discussed.
Increased Pleading Standards for Patent Infringement Complaints
The federal courts use a notice-pleading standard, which means that you only have to describe your claims in a general manner. This used to mean that a party that filed a patent-infringement lawsuit needed to do little more than identify the defendant, identify the patent that was allegedly infringed, state that it owned the patent-at-issue and assert that the defendant was infringing the patent-at-issue.
The Supreme Court raised pleading standards for all federal cases with the issuance of the Bell Atlantic v. Twombly decision in 2007 and the Ashcroft v. Iqbal decision in 2009. However, the existing pleading standards do not require a patent owner to identify: (1) the specific patent claims in the patent-at-issue that is being asserted; or (2) the allegedly infringing process, machine, manufacture or composition of matter.
This may seem strange to an inexperienced patent litigant. Federal courts allow the parties to conduct extensive discovery, however, so this information is usually disclosed at an early stage in most patent cases. Moreover, many federal courts have specialized patent rules that provide a formal framework to facilitate the discovery of this information.
Nevertheless, various advocates for this new round of patent reform believe that the current pleading standards for patent-infringement lawsuits are not sufficient. As a result, the next round of patent reform is likely to result in the implementation of a heightened pleading standard in patent-infringement lawsuits.
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