[rarw]

It actually happens all the time. The heightened pleading standard comes from two cases - Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009). As the Twombly court described it - The "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true." What this ends up requiring is that the plaintiff state specific factual allegations as to what the defendant is actually doing wrong. This sounds like a pretty good idea but in many cases is much more difficult than you'd think. Usually the difficultly arises because the information that supports your complaint, i.e. what the defendant is doing wrong, is totally within their control. You, as a plaintiff bringing an action, do not have access to this information until discovery starts, which is only after the complaint and an answer have been filed.

Think of it this way. You have a patent. You're pretty sure, but not positive, someone is infringing on it. Without the ability to inspect the supposed infringer's facilities, how do you plead with particularity factual allegations sufficient to support an infringment claim? If the infringment is blatent, sure this is easy. But in more nuanced cases (I can't think of a technical exmaple) it is possible to end up in a siuation where actual infringment is occuring but because of an inability to access the right information there is not enough available to sufficiently plead a claim.

[walid]

> What this ends up requiring is that the plaintiff state specific factual allegations as to what the defendant is actually doing wrong.

I'm not a lawyer but in the case of patent infringement I expect the plaintiff to be able to show said infringement. It is a technical matter that can be deduced from the product by studying its functionality. The defendant practically cannot hide infringement.

[GeneralMayhem]

Fabrication processes can be patented. I can imagine examples that would be hard to definitively prove based on the final output three stages farther down the assembly line.

[walid]

True, but that is the same reasoning that the law goes by when it is required to prove guilt rather than proving innocence. The legal system many times lets the bad guy walk to make sure that an innocent is not accidentally convicted or over burden by having to show innocence. Just because something criminal can happen shouldn't be enough to warrant a lawsuit. There should be proof of criminality, infringement, whatever. Otherwise the law will simply be used as a harassment tool as is being done with patents.

[rarw]

Sure in some cases. Don't forget that patents cover a diverse array of innovations. What exactly is being infringed upon is not always that obvious.

[ScottBurson]

The draft does contain the words "unless the information is not reasonable [sic] accessible".

There is a balance to be struck here, I agree, but in one example [0] it cost a troll an estimated $450 to file a completely baseless lawsuit which would have cost the defendant almost $200k to have dismissed ("would have", but didn't, only because the attorney worked pro bono). That doesn't seem to me to indicate that the balance is currently struck at about the right place.

It seems to me that before the court allows the dogs of discovery to be loosed upon the defendant, it is more than fair to require the plaintiff to be specific about what claims it is alleging infringment of and what the defendant is doing that constitutes infringement.

[0] http://www.techdirt.com/articles/20130814/02270724171/massiv...

[rarw]

Just wanted to note that there are frivolous litigation rules that allow for sanctions against the party bringing a bogus suit and allow the target of the suit to recover attorneys fees. It would be standard practice to include within the motion to dismiss a section also moving for these remedies. Thus it is likley that the cost to fight back against the troll would not have been 200k - with or without the pro bono.