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Pleading patent infringement

January 5, 2016

     On December 1, 2015, revised Federal Rules of Civil Procedure took effect.  A key element of the changes were the elimination of Form 18, which had met the minimal notice pleading requirement in place before Ashcroft v. Iqbal.556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly550 U.S. 544 (2007).

     The question is now, what level of particularity is required to meet the stricter pleading standards?

     Let's review the December 18, 2015 patent infringement complaint in Microsoft Corp. v. Corel Corp. & Corel Inc., N.D. Cal, 5:2015cv05836 (I am hosting a copy of the Complaint on Mega.co.nz) to examine how the Plaintiff pled patent infringement. 

1.    Identified the asserted patent numbers.
2.    Identified one claim from each asserted patent that they claim has been infringed.
3.    Described what the identified claim covers.
4.    Identified the specific products accused of infringing each patent.
5.    Demonstrate how the accused products alleged infringe each identified claim by using screenshots.

     Is this sufficient to meet the heightened standards?  We shall see.

     However, if additional particularity is required, then perhaps the Plaintiff will have:

a.   to identify all potentially infringed claims, instead of identifying one claim and stating that the Defendants infringe "at least" that one claim?

b.   to construe the allegedly infringed claim, instead of relying on a description of what the identified claim covers.

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