December 7, 2015
From Texas Lawbook

by Jeff Bounds

Businesses and individuals filed a record 851 patent infringement lawsuits in November — more than half of them in the federal courts of East Texas — amid concerns that new court rules could make it more difficult for their litigation to be successful.

Lawyers filed 467 new patent cases last month in the U.S. District Court for the Eastern District of Texas. That’s 32 percent more infringement lawsuits than have ever been filed in a single month in one judicial district in U.S. history, according to legal-research provider Lex Machina.

The biggest wave of new intellectual property cases came during the five business days surrounding Thanksgiving (Nov. 22-30), when plaintiffs filed 341 suits in East Texas, making it the busiest nine-day period in any court jurisdiction ever, Lex Machina data shows.

The litigation blitz, which solidifies the Tyler-based Eastern District of Texas as the patent litigation capital of America, was sparked by a change to the Federal Rules of Civil Procedure that went into effect Dec. 1. The change, approved by the U.S. Supreme Court, requires plaintiffs to provide more extensive details in their initial complaints alleging wrongdoing by defendants.

Legal experts say patent owners rushed to file new cases before the new rule took effect Dec. 1 because they weren’t sure whether trial courts would interpret the new requirement in a way that could have cases dismissed early in the legal process.

“Accused infringers were often required to conduct discovery just to learn what they had been accused of” under the previous rules, said Jason Wietjes, shareholder at the Polsinelli law firm in Dallas. “That is an advantageous position to be in for some plaintiffs. Hence the filing rush.”

The problem now for patent plaintiffs is figuring out precisely what the new rules require them to allege in their complaints and whether the new rules apply retroactively, Wietjes said.

“Under the new pleading standard, plaintiffs will have to demonstrate that their claims are plausible,” Wietjes said.

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