Patent Law And The Supreme Court: Certiorari Petitions Pending (April 2014)

WilmerHale compiles lists of certiorari petitions that raise patent-law issues. This page contains a consolidated list of all recently pending petitions, organized in reverse chronological order by date of certiorari petition.

Watkins v. Kajima Intern., Inc., No. 13-1200

Question Presented:

6th Circuit: Will this court solve the confusion of pleadings in a patent case? Is there more that has to be in the pleadings of a patent case or do the lower courts have to abide by the decision in: Bell Atlantic Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) ("Bell Atlantic") 4; see also Fed. R. Civ. P. Form 16 (2006) (setting forth a sample complaint for patent infringement that includes only the following elements: 1) an allegation of jurisdiction; 2) a statement that the plaintiff owns the patent; 3) a statement that defendant has been infringing the patent "by making, selling, and using [the device] embodying the patent"; 4) a statement that the plaintiff has given the defendant notice of its infringement; and 5) a demand for an injunction and damages); Conley, 355 U.S. at 47, 78 S.Ct. 99 (stating that "[the] illustrative forms appended to the Rules plainly demonstrate [the pleading requirements]"). It logically follows that a patentee need only plead facts sufficient to place the alleged infringer on notice as to what he must defend. See Bell Atlantic, 127 S.Ct. at 1971 n. 10 (stating "[a] defendant wishing to prepare an answer in the simple fact pattern laid out in Form 9 [in the Federal Rules of Civil Procedure] would know what to answer; a defendant seeking to respond to plaintiffs' conclusory allegations would have little idea where to begin."). Thus, a plaintiff in a patent infringement suit is not required to specifically include each element of the claims of the asserted patent.

Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)

"Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment."

Many [m]otions to dismiss or to strike could be avoided if the parties confer in good faith (as they are required to do under L. R. 7-3), especially for perceived defects in a complaint, answer or counterclaim which could be corrected by amendment. See: Chang v. Chen, 80 F. 3d 1293, 1296 (9th Cir. 1996) (where a motion to dismiss is granted, a district court should provide leave to amend).

Moreover, where a party has amended his Complaint once or a responsive pleading has been served, the Federal Rules provide that leave to amend should be "freely given when justice so requires." F[ed]. R. Civ. P. 15(a). The Federal Circuits require that this policy favoring amendment be applied with "extreme liberality." Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) [(e]mphasis added[).] Especially where there is a pro se litigant involved, the court must show how that the pro[ ]se litigant arguments are incorrect AND INSTRUCT THE PRO SE LITIGANT ON HOW TO REPAIR PLEADING. Sims v. Aherns, 271 S.W. 720 (1925) [(e)mphasis added[);] Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982).

"Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices... [T]he glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law." Many [l]awyers have expressed to Petitioner of the confusion between the circuit courts on this issue. Also Petitioner's had quoted this case on a motion to amend the complaint to comply with the above and District court refused.

2. 6th Circuit: Especially when Petitioners actually requested it can the lower courts dismiss a case without telling the Plaintiff when in pro[ ]se what he has to add to the claim when dismissing for failure to state a claim and court refusing to address the question of supplemental jurisdiction and without allowing him to amend the complaint or does the lower courts have to comply with this court[']s decision in:

   Conley v. Gibson, 355 U.S. 41 at 48 (1957)

   "Following the simple guide of [R]ule 8(f) that all pleadings shall be so construed as to do substantial justice"... "The federal rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." The court also cited Rule 8(f) FRCP, which holds that all pleadings shall be construed to do substantial justice.

   Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)

   "Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment."

   Many [m]otions to dismiss or to strike could be avoided if the parties confer in good faith (as they are required to do under L. R. 7-3), especially for perceived defects in a complaint, answer or counterclaim which could be corrected by amendment. See: Chang v. Chen, 80 F. 3d 1293, 1296 (9th Cir. 1996) (where a motion to dismiss is granted, a district court should provide leave to amend).

   Moreover, where a party has amended his Complaint once or a responsive pleading has been served, the Federal Rules provide that leave to amend should be "freely given when justice so requires." F[ed]. R. Civ. P. 15(a). The Federal Circuits require that this policy favoring amendment be applied with "extreme liberality." Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) [(e)mphasis added[). W]here there is a pro se litigant involved, the court must show how that the pro[ ]se litigant arguments are incorrect AND INSTRUCT THE PRO SE LITIGANT ON HOW TO REPAIR PLEADING. Sims v. Aherns, 271 S.W. 720...