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Friday, 06 November 2015 12:33

New Federal Rules of Civil Procedure (2015) and Effects on Patent Litigation

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The new Federal Rules of Civil Procedure (FRCP) will take effect on December 1, 2015, and shall govern all proceedings in civil cases commenced thereafter. Specific to patent litigation, the 2015 FRCP eliminated the previous form patent complaints (i.e. Civil Form 18) that allowed patentees to file a complaint without specifically setting forth its theory of infringement. After taking effect, the new FRCP will require a patentee's initial complaint to comply with the Supreme Court rulings in Twombly and Iqbal, under which the patentee must set forth sufficient facts to make a claim for relief plausible. In patent cases, courts may therefore begin requiring a showing of which patent claims are being infringed and possibly the inclusion of at least one claim chart comparing the accused product with at least one claim.

As to discovery, the new FRCP additionally adds language intended to streamline and reduce the costs associated to discovery. Specifically, Rule 26(b)(1) is being amended to include a concept of "proportionality", wherein parties may obtain discovery regarding nonproviileged matter that is relevant to a party's claim or defense and that is proportional to the needs of the case. Six factors are considered in assessing what qualifies as a "proportional need": (1) importance of the issues; (2) amount in controversey; (3) parties' relative access to relevant information; (4) parties' resources; (5) importance of discovery in resolving the issues; and (6) whether the burden of discovery outweighs its likely benefit.

The full FRCP update can be found at

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Tony Guo

As a specialized technology counsel, Tony supports his clients in the high tech, creative, and online industries. His primary areas of practice include intellectual property protection, Internet law, and startups. Tony is a USPTO registered patent attorney, as well as a licensed lawyer in California and Florida. He comes from a background involving considerable hardware and software development experience, having worked in both development and IT roles in the tech and finance industries.

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