Federal Rule of Civil 84 provides that "[t]he forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate." Judge Burns of the U.S. District Court for the Southern District of California was faced with the "question [of] whether Fed. R. Civ. P. 84 and Form 18 mollify the Iqbal standard in a patent infringement action ...." Brain Life, LLC v. Elekta Inc., et al., Case No. 10cv1539-LAB (BGS) (July 15, 2011 Order).
In Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937 (2009), like in Twombly before it, the Court held that while a complaint need not provide detailed factual allegation, conclusory allegations were insufficient. Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." "[D]etailed factual allegations" are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), but the plaintiff must "state a claim to relief that is plausible on its face," id. at 570.
Relying on Rule 84 and Form 18, Brain Life argued that its compliance with these rules was a shield to defendant Varian's motion to dismiss. In its complaint, Brain Life claimed that Varian directly and indirectly infringed its method claims. Using allegations consistent with Form 18, Brain Life's assertions of indirect infringement stated:
Varian has manufactured and/or sold certain systems, including but not limited to Clinac, Trilogy and Novalis TX, which integrate apparatus with software modules marketed under the name Eclipse (or some form thereof) (collectively the apparatuses and software modules are denoted the "Varian Systems"). Varian, in conjunction with the sale of the Varian Systems, has induced purchasers and users of the system to infringe certain method claims of the '684 Patent. Specifically, the Varian Systems have been used by medical practitioners to directly infringe method claims 53, 54, 55, 61 and 78 of the '684 Patent ("Asserted Claims"). Varian has induced users of the Varian Systems to directly infringe by providing manuals, written instructions and procedures, and other printed materials, distributed in the United States, as well as providing training, instruction and various programs conducted in the United States in the use of the Varian Systems in a manner that infringes the Asserted Claims ("Acts of Inducement"). (Compl. ¶ 41.)
As to direct infringement, Brain Life's allegation were much shorter:
Additionally, Varian has also directly infringed the Asserted Claims by practicing the method claims through on-call services in which the Varian Systems' equipment and an accompanying Varian technician (agent) are used on a short-term "pay for use" financial arrangement. (Compl. ¶ 43.)
Given these allegations, the court grappled with reconciling Iqbal and Twombly on the one hand, and Rule 84 and McZeal v. Spring Nextel Corp., 501 F.3 1354, 1356-58 (Fed. Cir. 2007), on the other. In McZeal, the Federal Circuit held that allegations of patent infringement akin to Brain Life's did satisfy Rule 84 and thus were sufficient to avoid a motion to dismiss. The Brain Life court, however, dismissed without prejudice Brain Life's infringement claims against Varian. In so doing, the court relied on the fact that McZeal was decided pre-Iqbal, and that post-Iqbal decisions from other courts have held that complying with Rule 84 and Form 18 does not necessarily satisfy the pleading requirements of Iqbal and Twombly.