Abstract
The tension between an extremely barebones Federal Rules of Civil Procedure Form 18 for patent infringement lawsuits and Supreme Court case law through Twombly and Iqbal has made it difficult for courts to dismiss frivolous patent litigation at the complaint stage. In this article, I look at the Federal Circuit’s treatment of Twombly and Iqbal, empirically evaluate 12(b)(6) motions from various district courts, and summarize local patent rules from the Eastern District of Texas. I conclude that the biggest likely impact of statutorily heightening and defining patent pleading standards through the proposed Innovation Act would be to provide much-needed uniformity in the endeavor of gatekeeping weak lawsuits, without serious adverse impact.
Citation
Arjun Rangarajan, Pleading Patents: Predicting the Outcome of Statutorily Heightening Pleading Standards, 13 Duke Law & Technology Review 195-215 (2015)
Available at: https://scholarship.law.duke.edu/dltr/vol13/iss1/8