Tuesday, October 14, 2014

Sanctions under Rule 11 more powerful tool against "trolls" than eliminating Rule 84

Some discussion Rule 84 / Form 18 has appeared; see the two comments to the post The Judicial Conference of the U.S. makes small rules change for patent infringement and
One weird legal trick that makes patent trolls cry

Yes, Ultramercial v. Hulu does cite Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)

and one also should consider Rule 11.

From a 2008 IPBiz post:

as the district court noted, this court has explained that
[i]n bringing a claim of infringement, the patent holder, if challenged, must
be prepared to demonstrate to both the court and the alleged infringer
exactly why it believed before filing the claim that it had a reasonable
chance of proving infringement. Failure to do so should ordinarily result in
the district court expressing its broad discretion in favor of Rule 11
sanctions, at least in the absence of a sound excuse or considerable
mitigating circumstances.
View Eng’g, Inc. v. Robotic Vision Sys., Inc., 208 F.3d 981, 986 (Fed. Cir. 2000).

See also article by Hana Oh Chen , Jurimetrics, Vol. 54, No. 2, 2014, including text:

Sanctions under Rule 11 can be such a tool in curbing frivolous infringement suits. Rule 11 is particularly useful in the patent litigation context because it applies throughout the stages of litigation, including the initial stages, and its provisions help prevent the overdeterrence of claims with merit. A technology-specific application of the prefiling investigation requirement under Rule 11 can be an effective weapon in deterring plaintiffs from bringing meritless claims.


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