On December 1, 2015, the amended Federal Rules of Civil Procedure went into effect. Among the changes, the amended Rules abrogated Rule 84 and its Appendix of Forms that “suffice[d] under [the pre-amendment] rules and illustrate[d] the simplicity and brevity that [those] rules contemplate[d].” Now-deleted Form 18 was a bare-bones exemplar complaint alleging direct patent infringement, and provided a low bar for the amount of notice and detail that a patentee must provide to the court and the defendant.
The abrogation of Form 18 eliminated the tension between its low threshold for direct infringement pleading and the higher pleading standard articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly41 and Ashcroft v. Iqbal, 42 and which has—since these decisions—generally been applied to patentees asserting a complaint of indirect patent infringement. The Iqbal/Twombly standard requires a plaintiff to plead a “plausible” claim; a claim has plausibility when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 43
Several district courts have addressed post-Rule amendment direct infringement pleading. Although they generally agree that the abrogation of Form 18 and the subsequent application of the Iqbal/Twombly standard requires more detailed pleading, there is some disagreement as to the specific requirements for stating a plausible claim.
The Northern District of California was one of the first courts to react to the rule change. Just weeks after the elimination of Form 18, Judge Alsup ruled, unsurprisingly, that the plausibility standard of Iqbal/Twombly now applies to direct patent infringement claims.44 More recently, in Atlas IP LLC v. Pac. Gas & Elec. Co., Magistrate Judge LaPorte further elucidated the new standard of pleading for patent infringement cases.45 In Atlas, the Magistrate Judge found that the complaint did not state a plausible claim because it recited some—but not all—of the claim elements of the sole asserted claim and provided only a “threadbare” description of the structure and functions of the patented device.46
The Northern District of California’s decision in Avago Techs. General IP (Singapore) PTE Ltd. v. Asustek Computer, Inc. reaffirmed the district’s application of the Iqbal/Twombly pleading standard, stating that “Form 18 no longer provides the proper measure for the sufficiency of a complaint” and that, under the new rules, “allegations of direct infringement will be subject to the pleading standards established by Twombly and Iqbal.” 47 Unlike in Atlas, however, Judge Chen in Avago found that the plaintiff had sufficiently stated a plausible claim for relief. According to Judge Chen, “nothing about Twombly and Iqbal suggests that a patent infringement complaint that largely tracks the language of the claims to allege infringement is insufficient per se.” 48 Judge Chen found that “the allegations are not as conclusory as that formerly permitted under Form 18 and has sufficient specificity to provide at least some notice to [the defendant].” 49 Judge Chen also noted that the district generally does not require detailed infringement theories until the time that infringement contentions are served, which is normally several months after a complaint is filed.50
Judge Gilstrap—in front of whom nearly one-third of the nation’s patent cases sit51—of the Eastern District of Texas stated that “Form 18 no longer provides a safe harbor for direct infringement.” 52 In Ruby Sands v. Am. Nat’l Bank of Texas, Judge Gilstrap found that the amended complaint plainly failed to state a plausible claim. According to Judge Gilstrap, the plaintiff made no factual allegations that “even remotely” suggest the defendant performed any alleged infringing activity, which forced the court to conclude there was no plausible inference of direct infringement.53 Worse, however, was the inadvertent inclusion of language in the complaint that was from a pleading in a different case, completely unrelated to the patent in the present case. Judge Gilstrap pointed out that these “cut-and-paste” pleading practices were exactly what the elimination of Form 18 meant to address.54
Notwithstanding the “careless” 55 pleading in Ruby Sands, patent litigants in the Eastern District of Texas have generally approached the abrogation of Form 18 by providing more details and higher levels of specificity in their complaints. From the time Form 18 was eliminated until January 27, patent litigants filed 148 lawsuits in the district. Of those cases, 133 identified at least one accused instrumentality by name, 132 complaints identified at least one asserted patent claim, 100 complaints provided details on the infringement, and nine complaints provided a claim chart connecting at least one asserted claim to at least one accused instrumentality.56
The District of Delaware—another very busy jurisdiction for patent litigation—has also addressed direct infringement pleading post-Form 18 abrogation. For example, in RainDance Techs., Inc. v. 10x Genomics, Inc., Judge Andrews granted the defendant’s motion to dismiss claims for direct patent infringement.57 Although the complaint was originally filed in February 2015, Judge Andrews applied the Iqbal/Twombly standard because he believed it was “in the interest of justice to do so.” 58 And, while the complaint was thirty-five pages long, “its essential factual allegations do not take up much space[,]” and it made no attempt to relate the factual assertions with the patent claims.59 In short, volume alone will not meet the Iqbal/Twombly standard.
More recently, in granting a defendant’s motion to dismiss, Judge Gutierrez of the Central District of California held that, “in the post-Form 18 world, a plaintiff must include allegations sufficient to ‘permit [the] court to infer that the accused product infringes each element of at least one claim.’” 60 The plaintiff alleged that its complaint was sufficient because it explained the claim elements and tied each element to a representative accused technology. Notwithstanding, Judge Guiterrez found that the complaint failed because it did not “plausibly allege that any one product produced by Defendants performs all elements . . . [or] that the multiple [identified] products tied to the various claim elements are used to conjunctively infringe.” 61
Although the specific requirements of the plausibility standard are still developing, it is clear that patent owners can no longer rely on the safe harbor that Form 18 provided and should ideally identify at least one infringed claim, identify at least one infringing product, and describe how the product infringes the identified claim. It is not clear whether amendments will be required to assert additional claims or to accuse additional products, but this seems unlikely.