[unavoidable]

This is actually very common in industry, especially with respect to manufacturing processes. For example, let's say you have a (presumably valid) patent on an improved manufacturing method for a drug. Maybe it's a really efficient way to mix things into pill form, giving you a cost advantage in the market. But you don't have a patent on the actual drug. If someone else makes the drug using your process, how would you actually find out?

There may be a number of ways to make a product, but only one of the ways of making it is infringing. It's not like companies go around telling people the secrets of their manufacturing plant. Many manufacturing plants, especially in pharma and also in tech, have high security.

And even if you could find out (let's say by corporate espionage) - that evidence may not always be admissible (or reliable) in court.

[walid]

I think you're getting it wrong. This doesn't make "Heightened Pleading" difficult. The whole idea is to say the defendant is infringing on such and such in their manufacturing process. It seems to me that this is the extent of Heightened Pleading.

[EGreg]

In your example, if you have a presumably valid patent and you file a patent suit, then you can readily name the patent that is being infringed.

The opposite is the famous example of lawyers from IBM basically extorting money saying "do you want us to go back to Armonk and find some patents which you DO infringe?" The implication is "pay us now and we won't make life harder for you using the legal system, because we think we can". That is not justice, nor is it in anybody's interest except the holders of many patents.

[rarw]

That's not really how things work. Not only is that sanctionable but extremely unethical and would result in diciplinary action if reported.

[EGreg]

How would they prove that this "threat" took place unless they recorded every conversation?

The fact is that this extreme example is just an example. Lots of companies just send a bunch of intimidating letters to people and hope it sticks - because it's free!

Eg http://www.audioholics.com/news/blue-jeans-strikes-back

[barry-cotter]

I'm sorry but defending the ethics of lawyers outside of a majority legal environment is a losing move.