Analyzing patent infringement is complex and challenging. Under the current state of the law, accused infringers are arguably left to speculate as to how or why they infringe, even after being served with a complaint for patent infringement. The Judicial Conference of the United States is now working to rectify this problem.
In 2007, the U.S. Supreme Court's Twombly decision told us that a complaint may only survive a motion to dismiss if it contains sufficient factual allegations that, taken as true, "state a claim to relief that is plausible on its face." 1 A few years later, the high Court explained in Iqbal that the plausibility standard applies to "all civil actions." 2 Recently, however, the U.S. Court of Appeals for the Federal Circuit has held that, to the extent that the plausibility standard conflicts with the bare-bones model complaint for direct patent infringement contained in Form 18 to the Federal Rules of Civil Procedure, "the Forms control." 3 Confused? You’re not alone.
Using an example of "electric motors," Form 18 simply requires a complaint for patent infringement to allege (1) that the plaintiff owns a patent for an "electric motor"; (2) that the defendant is infringing the patent by making, selling and using "electric motors" that embody the patented invention; and (3) that the plaintiff has marked its "electric motors" with the patent number and has given the defendant written notice of its infringement. Of course, for certain simple and clearly defined apparatuses, a Form 18 complaint may include everything necessary to state a plausible claim for relief. However, where the apparatus is poorly defined or the allegations involve complex technology and/or patent claims, the factual paucity of Form 18 pleading arguably does not meet the plausibility standard.
The problem is that Rule 84 of the Federal Rules of Civil Procedure states that "[t]he forms in the Appendix suffice under these rules . . . ." Accordingly, lower courts are forced either to reconcile Form 18 with the plausibility standard 4 or to choose between the Federal Rules of Civil Procedure and Supreme Court precedent. Finding the standards irreconcilable, the U.S. District Court for the Eastern District of Pennsylvania summarized the dilemma as follows:
Put simply, the forms purporting to illustrate what level of pleading is required do not reflect the sea change of Twombly and Iqbal. Rule 84, however, instructs that the forms "suffice" such that pleaders who plead in accordance with the forms are subject to a safe harbor. This inconsistency between the Supreme Court’s interpretation of Rule 8(a) and the forms Rule 84 validates should be remedied: either by modifying or eliminating Rule 84 or by updating the forms to clearly comply with existing law. 5
Last week, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States outlined a proposal to address this dilemma. Recognizing that "some of the forms have come to seem inadequate, particularly the Form 18 complaint for patent infringement," the Committee recommended to abrogate Rule 84 and the Appendix of Forms in their entirety. Under the Committee’s proposal, forms related to waiver of service would be incorporated into Rule 4, and all other forms would be removed. 6
The Committee's proposal is now in a six-month comment period during which public hearings will be held in Washington, D.C., Phoenix and Dallas. If approved, the amended rules will become effective on December 1, 2015. Until then, courts will continue to struggle with the appropriate pleading standard for direct patent infringement claims. We will monitor the proposed amendments and provide updates when available.
1 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
2 Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009).
3 In re Bill of Lading Transmission & Processing Sys. Patent Litig., 681 F.3d 1323, 1334 (Fed. Cir. 2012); see also Superior Indus., LLC v. Thor Global Enters., 700 F.3d 1287, 1292 (Fed. Cir. 2012); K-Tech Telecomms., Inc. v. Time Warner Cable, Inc., 714 F.3d 1277, 1283 (Fed. Cir. 2013). Because Form 18 does not address indirect patent infringement, the plausibility standard clearly applies to indirect infringement claims. Superior Indus., 700 F.3d at 1295.
4 In K-Tech, for example, the Federal Circuit read the plausibility standard into Form 18, stating "we think it clear that an implausible claim for patent infringement rightly should be dismissed." K-Tech, 714 F.3d at 1284.
5 Tyco Fire Prods. LP v. Victaulic Co., 777 F. Supp. 2d 893, 905 (E.D. Pa. 2011) (internal citations omitted) (holding that Form 18 pleading was insufficient in the wake of Twombly and Iqbal).
6 The Committee’s Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure is available here. The proposals relevant to this Alert are discussed on pages 275-77 and 329-30 of the Preliminary Draft.