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Immediate Impact of the Repeal of Form 18 On Patent Litigation

By Ben Smiley

On Dec. 1, 2015, the latest amendments to the Federal Rules of Civil Procedure (FRCP) became effective. The amendments include significant changes to rules governing the discovery process, especially Rules 16 and 26. But they also include a significant change to the rules governing the very first filing in any patent infringement case, i.e., the complaint alleging infringement.

Rule 84 has been repealed and, with it, the appendix of forms including Form 18. Patent owners have long relied on Form 18 to justify infringement allegations lacking the specificity common in other contexts, particularly following the Iqbal & Twombly decisions. Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). With Form 18 gone, the courts will need to determine the pleading specificity required for patent infringement complaints. The coming months should bring a host of decisions addressing this issue that begin to clarify the practical implications of this change.

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