After affirming a rather routine non-infringement analysis, and remanding for a DOE analysis, the CAFC in Itamin v. Magnestar undertook review of a Rule 11 ruling. It provoked the question, why is a Rule 11 analysis of the bona fides of a patent complaint reviewed according to the “law of the regional circuit”? The effect is that the same patent complaint filed in various circuits may or may not be ruled frivolous. Since patent suits, and the pre-filing investigation (if any), are issues that never reach the regional circuits’ dockets, then there’s not much “law of the regional circuit” to be applied by the CAFC.
In districts where patent suits are more frequently filed, it might be understood that to be adequate, a pre-filing investigation must involve having a claim chart prepared, and/or a validity chart, and/or buying and testing the accused subject matter. In other districts, it is enough that some salesperson saw the competitor’s product, from afar, at a trade show – no test, no buy, no claim chart.
Thus, the CAFC rule of applying the regional circuit’s rule, is to have no Rule 11 standards for patent complaints. At least it means that the rule is unknown, and as with many issues, only becomes known after the CAFC takes a look at it.