Sedona Conference proposes heightened pleading standards in patent litigation

For many years, Form 18 of the Federal Rules of Civil Procedure provided a very basic format for pleading claims of direct patent infringement. The bright line standard provided by Form 18 largely avoided controversy over the level of detail required to plead a claim for patent infringement. The Federal Judicial Conference, however, repealed Form 18 effective December 1, 2015, opening the possibility for disputes over how much more information is required to plead claims for direct patent infringement under the Supreme Court’s Iqbal and Twombly decisions.

This Chapter on Heightened Pleading Standards provides guidance as to the level of detail to be now included with the pleadings, both from the perspective of the minimum requirements set by Iqbal/Twombly as applied to patent infringement suits, and also from the perspective of what additional information should be further encouraged from both parties to promote the efficient administration and resolution of patent disputes. All parties and the courts have an interest in avoiding extensive satellite litigation regarding the sufficiency of the pleadings, and, if adopted, the Principles and Best Practice recommendations presented in this Chapter will help streamline the pleadings process in patent cases.

Please review and send comments on this Chapter on Heightened Pleading Standards to by August 15, 2016. This is an essential part of the process in making our Sedona commentaries true consensus and non-partisan documents representative of the viewpoints of all stakeholders in patent litigation today, so please lend us your time and expertise!

For more information on the proposed pleading standards, you may contact DiMuroGinsberg lawyer, Cecil Key, a member of The Sedona WG10 Heightened Pleading Standards team, at

Virginia Supreme Court upholds Thorsen v. RSPCA

On June 2, 2016 the Virginia Supreme Court affirmed a $603,409.90 verdict that DiMuroGinsberg obtained for its client in Thorsen v. Richmond Society for the Prevention of Cruelty to Animals. DiMuroGinsberg, P.C. represented the Richmond Society for the Prevention of Cruelty to Animals in this legal malpractice dispute against Richmond lawyer James Thorsen. In 2003, Mr. Thorsen drafted a will for Alice Louise Cralle Dumville. Ms. Dumville’s intention was for her property to pass to her elderly mother, or if her mother had already died, to the RSPCA. After Ms. Dumville’s death, it was determined by the Chesterfield County Circuit Court that the will had not been written as Ms. Dumville intended and only passed Ms. Dumville’s tangible personal property to the RSPCA instead of her entire estate. DiMuroGinsberg, P.C. represented the RSPCA asserting that the RSPCA was a third party beneficiary of the contract between Ms. Dumville and Mr. Thorsen and was therefore permitting to file a legal malpractice claim against Thorsen and his firm based upon the oral retainer agreement between Thorsen and Ms. Dumville. While permitted in other states, third party actions against attorneys for legal malpractice are rarely, if ever, successful in Virginia.

In a six to one decision, the Virginia Supreme Court found that the RSPCA could maintain its malpractice suit against Thorsen even though the claim was based on an oral contract, finding for the first time in this context that the common law permits such lawsuits by a third party beneficiary. The Court also held that RSPCA had met Virginia’s stringent standard to maintain a third party beneficiary claim in a legal malpractice setting. Indeed, the Court noted that the standard “has proved so difficult that this Court has not seen another such case in the nearly three decades” since setting forth the standard. Finally, the Court rejected Thorsen’s argument that the statute of limitation should have been calculated based upon the date the will was drafted as opposed to the date of Ms. Dumville’s death. The Court explained that a third party beneficiary does not suffer injury until the decedent dies because wills can be changed up until the death of the testator and that a third party beneficiary only has a bare expectancy until that time.

DiMuroGinsberg P.C. attorneys Michael Lieberman and Ben DiMuro represented the RSPCA during the Virginia Supreme Court arguments.

Click here to read Court’s Opinion