Study on Pleading with Particularity
As any practitioner knows, complaints for patent infringement vary widely in how specifically they accuse infringement – some call out particular patent claims, some call out products or features, some do both, and others neither.
The specificity of a complaint directly impacts the cost of defending a case: each combination of claim, product, and feature must be separately analyzed for infringement and invalidity purposes. When the number of potentially asserted claims is large,* tracking the subtle differences between those claims, how they apply to a different features of a party’s products or services, and how those those mappings have changed over time becomes daunting.
To quantify how particularly patent infringement claims are pled, I sampled 500 non-declaratory judgment patent cases filed in 2014. In each case, I classified the complaint according to whether it identified the claims at issue, whether it identified a product or process accused of infringing, and whether it identified a feature or function of the product or service accused. Where an identification was exhaustive or limiting, I noted that as well.
Key findings based on the sample include:
- Less than half (41.4%) of the complaints identified at least one claim being asserted.
- The only exhaustive identification of claims was in complaints identifying “all claims” as asserted.
- Complaints overwhelmingly (90.8%) identified at least one product or process, but very few (1.4%) identified the product or process exhaustively.
- A feature or function was identified in 57.2% of the cases overall.
- Exhaustive product identification was rare and occurred mainly in licensing disputes or ANDA-related pharmaceutical contexts.
- In 6.6% of the cases, a feature was identified without identifying a product (for example, accusing bluetooth functionality across all makes and models of cars manufactured by defendant)
- When indirect claims (which require greater specificity) were explicitly included in the complaint, particularity as to claims increased (50.6% for indirect vs 31.7% for direct) but particularity as to products decreased slightly (87.9% for indirect vs 93.8% for direct)
* See, e.g., Joao Control & Monitoring Systems, LLC v. Protect America, Inc., 1-14-cv-00134 (W.D.Tex., March 24, 2015, Order) (“[Plaintiff’s][/Plaintiff’s] asserted patents are clearly complex. Among the six patents, there are over 900 claims, many of which [plaintiff’s][/plaintiff’s] counsel admits are inapplicable to [defendant’s][/defendant’s] products and services. A pleading that alleges ‘one or more’ of the over 900 claims in the patents-in-suit are infringed gives [defendant][/defendant] and this court scant notice of what is truly alleged to be at issue in this case”). A second example is the well-known case of NTP Inc. v. Research In Motion, in which NTP pled infringement of patents including over 2,400 claims, with only 31 construed in claim construction and 16 ultimately tried. 270 F. Supp. 2d 751, 761 (E.D. Tex., May 23, 2013).