On April 18, 2013, the Federal Circuit issued another decision in which it analyzed the interplay between the standard form patent complaint in Form 18 of the Federal Rules of Civil Procedure and the Supreme Court’s decisions in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Form 18 suggests that a plaintiff can satisfy the pleading standards for alleging direct patent infringement with relatively minimal allegations. The Federal Circuit determined that the Supreme Court’s decisions in Twombly and Iqbal did not pre-empt the appropriateness of Form 18. This decision follows a prior one (R+L Carriers, Inc. v. DriverTech LLC, (In re Bill of Lading Transmission & Processing System Patent Litigation), 681 F.3d 1323 (Fed. Cir. 2012)), in which the Federal Circuit considered the same question (and ruled in the same way).
The Federal Circuit noted that Form 18 requires that a plaintiff make:
(1) an allegation of jurisdiction; (2) a statement that the plaintiff owns the patent; (3) a statement that defendant has been infringing the patent ‘by making, selling, and using [the device] embodying the patent’; (4) a statement that the plaintiff has given the defendant notice of its infringement; and (5) a demand for an injunction and damages.
The Federal Circuit further noted that “Federal Rule of Civil Procedure 84 states that ‘the forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate’” and that the Advisory Committee Notes “make clear that a proper use of a form contained in the Appendix of Forms effectively immunizes a claimant from attack regarding the sufficiency of the pleading.”
The question the Court next considered was whether Twombly and Iqbal pre-empted Form 18 and Rule 84. It determined that “as we made clear in R+L Carriers, to the extent any conflict exists between Twombly (and its progeny) and the Forms regarding pleadings requirements, the Forms control.”
In addressing the sufficiency of the complaint, the Court noted that it is generally not necessary for a plaintiff to identify the precise product being infringed, especially in instances where that information is within the control of the defendant and not publicly available.
Having said that, the Court then back-tracked somewhat about the detail required to meet the pleading standards, indicating that the bare allegations required in Form 18 might not be sufficient, depending on the complexity of the case and what would be required to give a defendant sufficient notice of the claims being brought against it.
A complaint containing just enough information to satisfy a governing form may well be sufficient under Twombly and Iqbal. R+L Carriers, 681 F.3d at 1334 n.6. “Resolution of that question will depend upon the level of specificity required by the particular form, the element of the cause of action as to which the facts plead are allegedly inadequate, and the phrasing of the complaint being challenged.” Id. (citing Twombly, 550 U.S. at 564 n.10 (noting that forms governing claims for negligence require sufficient detail to permit a defendant to “know what to answer”)). And we think it clear that an implausible claim for patent infringement rightly should be dismissed.
Form 18 in no way relaxes the clear principle of Rule 8, that a potential infringer be placed on notice of what activity or device is being accused of infringement.
Moreover, the Court cautioned that mere compliance with Form 18 may not be sufficient to meet the ethical requirements for filing a patent infringement action—plaintiffs must still conduct the required due diligence under Rule 11.
Satisfaction of Form 18 does not guarantee compliance with Rule 11 of the Federal Rules of Civil Procedure. That a complaint alleges a plausible claim for patent infringement on its face and satisfies Form 18 does not immunize a plaintiff who fails to identify easily ascertainable evidence of noninfringement through appropriate pre-suit investigation.
It appears that the Federal Circuit felt constrained by the Rules of Civil Procedure and the pre-Twombly/Iqbal forms. Had Form 18 not existed, the Federal Circuit may have decided differently. That being said, until Form 18 is changed, litigants must consider the appropriateness of pleadings in the context of Form 18, and not just the Twombly and Iqbal standards. Providing sufficient particularity to provide notice to the accused infringer of the patents raised and the acts of alleged infringement is still the ultimate touchstone.