Judge Andrews Applies New Pleading Rules Retroactively to Motion to Dismiss Complaint for Direct Infringement

March 17, 2016

Publication| Intellectual Property

In RainDance Technologies, et al. v. 10X Genomics Inc., C.A. No. 15-152-RGA (D. Del. Mar. 4, 2016), Judge Andrews dismissed a complaint for patent infringement under “the post-December 1, 2015 direct infringement pleading standard.” The complaint was filed on February 12, 2015 and amended on April 9, 2015. The Court found that retroactive applicability of the new Federal Rules was properly within the Court’s discretion and, in this case, application “would be in the interest of justice.” Since the December 1, 2015 amendments to the Federal Rules of Civil Procedure abrogated Federal Rule 84 and the Appendix of Forms, Judge Andrews applied Iqbal and Twombly. Judge Andrews’ inquiry under Iqbal and Twombly included a comparison of the alleged facts surrounding the defendant’s product to the claims of the asserted patents, and the Court found that the “Plaintiff ma[de] no attempt to relate any [of] their factual assertions with any of the asserted claims.” The Court noted that the plaintiff may wish to purchase one of the defendant’s products to analyze as opposed to relying only on promotional materials. Since it was clear to the Court that the plaintiff was going to need to file an amended complaint as to at least two counts, the Court declined to review the remaining counts. Judge Andrews dismissed the amended complaint without prejudice, granting the plaintiffs three weeks to file an amended complaint.

Analysis: Judge Andrews has indicated he has discretion to apply post-December 1 pleading standards even to complaints filed prior to December 1.

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