Niro Scavone’s Joe Hosteny recently responded to my John Marshall Review of Intellectual Property article, The Uneven Application of Twombly in Patent Cases: An Argument for Leveling the Playing Field (click here to read it).  In the article, I argued that Twombly’s increased pleading standard should be applied to patent cases, but that it was being applied unevenly to patent plaintiffs and defendants.  To fix that, I argued that plaintiffs should be required to identify the asserted claims and the products accused of infringing those claims in their complaints. 

Hosteny responded in his February 2009 IP Today column, the Litigator’s Corner — click here to read it — contending that increasing pleading standards, in his experience, has either wrongly streamlined cases, where a defendant attempted to limit plaintiff to its original complaint regardless of what discovery later showed, or has increased the cost of discovery when plaintiff was required to move to compel after defendant unreasonably limited the scope of discovery defendant would provide based upon a more detailed complaint.

Hosteny admits his argument is based upon anecdotal evidence, and I do not fault him for that.  As litigators, we constantly rely upon our own anecdotal evidence to make decisions about our cases.  But I do disagree with Hosteny’s conclusion.  If the Federal Circuit adopted rules requiring more detailed pleadings, or even if just an individual district court did it, just like with other rules a body of law would be created guiding litigants in future cases.  Over time Hosteny’s anecdotal examples would stop recurring as defendants relied upon prior opinions telling them how much discovery beyond the claims was required.  And plaintiffs would learn how long they generally had to amend their complaints to add new claims or products.  So, while increased patent pleading standards might briefly increase the scope of discovery in patent cases, over time increased pleading standards would significantly reduce the cost and scope of patent cases.