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A state of flux: US law on patent infringement pleas


Christian Mammen

A state of flux: US law on patent infringement pleas

Andrey_Popov / Shutterstock.com

After amendments to the US Federal Rules of Civil Procedure, the law governing patent infringement pleadings is in flux. Christian Mammen of Hogan Lovells reports.

On December 1, 2015 a sweeping package of amendments to the US Federal Rules of Civil Procedure (FRCP) went into effect. In the main, these rule changes are designed to streamline early case management and discovery for all civil litigation. Several of the changes will have a major impact on patent litigation in particular.

Most notably, the current round of FRCP amendments abolished the appendix of forms and the appendix’s implementing rule—rule 84. The appendix of forms was an artifact of the original enactment of the FRCP in the 1940s. It was intended to illustrate for a potentially sceptical legal community what would be required under the “notice pleading” concept, which was innovative at the time.

One of the sample forms, ultimately known as form 18, illustrated a claim for direct patent infringement. Form 18 did serve a very basic notice function, informing the defendant of the patent number that was allegedly infringed, as well as some modicum of information about which of the defendant’s products allegedly infringed the patent.

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