257 US patent cases filed in one day ahead of new litigation rules

US patent cases filed in US district courts
	2013	2014	2015
January	486	330	445
February	547	448	491
March	404	500	507
April	605	680	390
May	503	387	608
June	485	414	654
July	476	419	478
August	521	395	309
September	552	320	327
October	515	340	443
November	578	334	836
December	422	439
Total for year	6094	5006	5488
Source: Docket Navigator

According to the Docket Navigator database, 257 patent infringement cases were filed in US district courts on November 30. This pushed the total number of cases filed in November to 836.

As of the end of November, some 5,488 patent cases had been filed in US district courts in 2015. This still puts it on course to be behind the record filing year of 2013. There would need to be more than 606 cases filed in December for this year to beat the 6,094 cases filed in 2013. Patent case filing has passed the 600 figure in only three months this year.

Some 196 of the cases filed on November 30 were filed in the Eastern District of Texas, representing 76% of the cases filed. The entities filing the most cases were Ruby Sands (with 21 cases filed), Encoditech (20), Guyzar (20), Opal Run (19), Iris Connex (18), Anuwave (17) and Bluestone Innovations (13).

In the last six business days of the month (November 23 and after), 499 cases were filed.

For the whole month of November, CryptoPeak Solutions filed the most cases (37), followed by Motile Optics (33) and High Quality Printing Inventions (30).

A likely explanation for the large increase in filing in November is new patent litigation rules that came into effect on December 1 that will bring in tougher pleading standards.

Entities filing most patent cases in November
Entity	Cases filed
CryptoPeak Solutions	37
Motile Optics	33
High Quality Printing Inventions	30
Unibeam Photonics	27
Ruby Sands	21
Encoditech	20
Guyzar	20
Pherah	20
Opal Run	19
Iris Connex	18
Anuwave	17
Verified Hiring	17
Mozly Tech	16
Icon Laser Solutions	15
AstraZeneca	14
Bluestone Innovations	13
Kinetic Trac	11
Network Architecture	11
Virtual Gaming Technologies	11
Manitto Technologies	10
Symbology Innovations	10
Source: Docket Navigator

The amendments to the US Federal Rules of Civil Procedure were approved in April this year and abolished Rule 84 and Form 18, which allows plaintiffs to file complaints consisting of merely the patent title, patent number and an allegation of infringement. Under the new rules, plaintiffs bringing an action of patent infringement are required to show that their claim is “plausible”.

Parties will need to adhere to the requirements outlined in the Supreme Court’s Bell Atlantic v Twombly decision in 2007 and Ashcroft v Iqbal decision in 2009 that state a complaint must have “sufficient factual matter, accepted as true, to state a claim that is plausible on its face” and “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged”.

It is not clear how the new standard will be interpreted, but the recent filing appears to be an effort to avoid the uncertainty.

In a blog post at the end of last month that predicted a spike in litigation in November, law firm Dykema member Aaron Charfoos noted: “What constitutes a ‘plausible’ claim in patent litigation is very unclear at this point and will likely require many months of motion practice at the district and appellate levels before we see a consensus forming. However, most people agree that a significant percentage of complaints filed today – with their bare-bones allegations – will not satisfy the new standard.”

It is possible, however, that the ploy of filing before the new rules became effective will not work in some courts. “The good news for defendants, however, is that some courts may apply the heightened standards retroactively. So even those bare-bones complaints that come in before December 1 may still be at risk,” Charfoos added.

The new standards will help defendants. As well as changes to the pleading standard, the amended rules redefine the scope of discovery, as analysed in this article.  

“The new standards may potentially provide defendants greater leverage against entities that file large numbers of suits in order to obtain settlements driven by the defendants’ desire to avoid litigation costs,” said Mayer Brown in a recent analysis. “These plaintiffs will be forced to more fully articulate their infringement theories and defendants will not have to wait for discovery to assess the merits of infringement claims.

“Defendants named in vague complaints should consider a motion to dismiss as a mechanism for disposing of the suit, or at least obtaining earlier disclosure of the plaintiff’s infringement theories. Parties bringing complaints of patent infringement may now wish to inculcate themselves against motions to dismiss by providing more detailed complaints, including at least identification of exemplary infringed claims and products.”