Most legal systems require some basic investigation of the facts underlying the key claims of a lawsuit before a case is filed in court and will penalise lawyers or the clients for filing meritless cases where such prior investigation did not take place or was inadequate. See, for example Rule 11 of the United States’ Federal Rules of Civil Procedure. See also, Q-Pharma, Inc. v. Andrew Jergens Co., 360 F.3d 1295, 1301 (Fed. Cir. 2004).
Generally a pre-filing investigation needs to establish:
- The proposed case is against the right party or parties,
- That there is an actual legal claim arising out of that party or parties actions, e.g., in intellectual property matters,
- Either direct or indirect (contributory or induced) acts of infringement,
- That the claims of the patent are actually infringed by the accused product, process, method or service,
- As a practical matter this usually means obtaining samples and seeking to prepare a claim chart,
- That there are no serious questions regarding the validity of any intellectual property;
- That the claimant has standing to bring the claim.