IP Alert: "Filing a Patent Complaint May Have Become More Difficult"
Effective December 1, 2015, Federal Rule of Civil Procedure 84 and its Appendix of Forms were repealed, including Form 18, which provided a generic complaint for patent infringement. Previously, a direct infringement claim could survive a motion to dismiss by complying with Form 18 – namely, alleging generally that a defendant infringed one or more clams of the asserted patent.
The Federal District Court in Delaware recently addressed the change to Rule 84 in RainDance Techs. Inc. v. 10x Genomics, Inc., No. 15-cv-00152, Dkt. 28 (D. Del. Mar. 4, 2016). In RainDance, the plaintiff's complaint identified a representative claim for each of the seven asserted patents and identified an accused product. The complaint included figures from defendant's conference presentations describing the accused product, as well as related material from defendant's website. The court remarked that, although the plaintiff relied on the defendant's promotional materials, the plaintiff failed to purchase one of the products to see how it actually worked and had filed the complaint less than a month after first learning about the accused product.
The court then analyzed the exemplary patent claims identified in the complaint and attempted to link each asserted claim limitation to a feature of the accused products. Despite the complaint identifying particular patent claims by number and identifying the defendant's product by name, the court dismissed the complaint.
Satisfying the RainDance criteria will not be easy, requiring a detailed analysis of how the accused product meets the limitations of at least one claim, and arguably requiring that a plaintiff purchase or otherwise gain access to the accused product before filing suit. Tactically, a defendant now gains an earlier than usual preview of a plaintiff's infringement theory.
Only time will tell if RainDance is an outlier, but the decision—and change to Rule 84—are consistent with trending decisions in similar contexts, such as pleading the knowledge requirement for indirect infringement, which tend to require plaintiffs to include more detailed allegations. Plaintiffs in Delaware (and those outside, too) must consider whether to comply with the RainDance standard in its complaint to prevent the need to re-plead, or worse re-file.