Higher Pleading Standards for Direct Infringement?

In recent years, the Supreme Court in Iqbal and Twombly required more than "notice" pleading.  But, under Rule 84, the forms in the appendix are deemed sufficient.  Form 18  requires very little to plead direct infringement.  Although the Federal Circuit has in a couple of cases limited the applicability of that form, e.g., R+L Carriers, Inc. v. DriverTech LLC, 681 F.3d 1323 (Fed. Cir. 2012) (Form 18 controls over Iqbal and Twombly for direct infringement, but not for indirect infringement) and K-Tech Telecommunications, Inc. v. Time Warner Cable, Inc., No. 12-1425 (Fed. Cir. Apr. 18, 2013)( any conflict between  Iqbal and Twombly and Form 18 hould be resolved in favor of Form 18 for direct infringement), but some say more robust pleading would reduce marginal lawsuits.

Those folks may soon have their way.  The Judicial Conference Committee on Rules of Practice & Procedure report at around page 275 of this report wants to abrogate Rule 84, and so eliminate the imprimatur given the forms.

Granted, Rule 11 and prreliminary infringement contentions and so on eliminate the practical scope of Form 18, but this may be a good thing.  Thoughts?

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

14 thoughts on “Higher Pleading Standards for Direct Infringement?

  1. 14

    What are you talking about? I’m pretty sure Iqbal and Twombly apply to all areas of the law. I don’t remember the Supreme Court excluding patent law. Of course, there is the current tension with Form 18 and Rule 84, but if those are abrogated, that tension goes away, simply reverting to Iqbal, Twombly and so on.

  2. 13

    Ned,

    As I mentioned, your ideas are not bad ideas.

    But they have nothing to do with what will actually be present if this package moves forward without more.

    Your posts are ‘wishful thinking’ – not that the wishes are bad, it is just that they are wishes. I am more interested in actualities.

  3. 12

    Iqbal and Twombly apply to other areas of law besides patent law.

    We will NOT be left with them, unless an additional change is made that distinctly states such.

    Simplicity and brevity simply are not served well by what I see here (and by what I do not see).

  4. 11

    anon, I was just suggesting that a complaint, sans Rule 84, should track the requirements to put one on notice. We should not develop two sets of criteria independently of one another, one complaint notice and the other actual notice. Can you imagine how ludicrous it would be to require MORE of a complaint than a notice of infringement, where the substantial effect of either is to put one into a damages situation per 287. See also 295 and the presumption regarding products of processes.

    Notice is notice is notice is notice. Notice is and should not require more than

    Notice.

    Whether the complaint or notice is frivolous is a separate issue. For example, if one DJs a patent owner on a notice and he cannot produce Rule 11 proof, then the case should be dismissed with prejudice.

  5. 10

    Well, after being abrogated, we will be left with Iqbal and Twombly. Hoepfully, that case law will be interpreted to require products to actually be identified with specificity. That’s at least a couple of year away though.

  6. 9

    Ned,

    These are not bad additioanl thoughts – but you are not commenting on the actual actions contemplated here. The form is being abrogated in its totality. It is not being replaced with any of the ideas you are advancing. To that end, your posts are like angels dancing on the tip of a pin.

  7. 8

    It would be interesting if someone researched what happens after district courts actually use those “tools” that Judge Rader points to. It seems like the district court is reversed in every case I see unless there was discovery abuse (but the suit wasn’t objectively/subjectively baseless).

  8. 7

    Anonymous, I think as a general rule that the rules concerning a sufficient complaint should track to some degree the rules regarding a sufficient notice. When products are involved, they should be identified with specificity. When processes are involved, what publicly available evidence is there that indicates the product is infringed.

    As well, if the infringement is other than by 271(a), such as by (b), (c) or (g), that too should be stated in the complaint.

  9. 6

    “Rule 11 – I’m not sure that really helps. First, I’m not so sure it’s actually effective in preventing baseless lawsuits from being filed”

    Why? Or perhaps better asked, why not?

    If Rule 11 is met, then any other reasoning (your purported ‘actual basis’) is rather inconsequential.

    Rader was correct in one aspect: the courts already have tools at the ready.

    Stricter requirements are not in and of themselves ‘bad,’ but are we dismissing the purpose of “simplicity and brevity” just because a lot of noise is being made about enforcing patents through litigation? Objectively, when one looks at litigation rate (suits per active patent), the litigation rate has actually DECLINED.

    Stop. Think. Reason. Who coined the pejorative ‘Troll’ term in the first place? Why?

  10. 5

    Not bad questions, Ned – but rather misses the point of my post.

    IF…

    …the committee had instead been straight forward and identified better measures for patent pleading sufficiency, THEN your post would be a fitting step to upgrading the form. Such an upgrade would have been simple enough (and thus also throws some suspicion on the ‘it’s too difficult’ reasoning that the committee uses – reasoning that simply does not jibe with the claim that the purpose of “simplicity and brevity” have been met).

    To be simple and brief, critical thinking makes me question what is going on here.

  11. 4

    I’m going to write up some thoughts about fee shifting and Section 285 that might play into this more, but in the meanwhile, it seems to me that the cost that can be imposed by simply filing a Form 18 complaint outweighs the benefit of allowing it. But, Rule 11 is, I believe, flexible enough to allow for suits to be filed where a pre-suit investigation cannot reasonably uncover a ton of specifics (e.g., the claim covers a process used behind the defendant’s closed factory doors). My fear is the pendulum will swing rapidly too far the other way. We’ll see…

  12. 3

    Rule 11 – I’m not sure that really helps. First, I’m not so sure it’s actually effective in preventing baseless lawsuits from being filed. But even assuming it is, it doesn’t prevent the actual basis from being hidden as the current pleading requirements allow.

    As to PICs, I agree that these are very helpful and solve much of the problem. But they are a creature of patent local rules that don’t exist in many jurisdictions. Moreover, depending on the jurisdiction and judge, you often don’t get them for many months after the lawsuit is filed. How about requiring PICs to be filed with the Complaint? In many jurisdictions, such as E.D. Tex., they are provided before any real discovery anyway. Although, that’s not the case in other jurisdictions, such as Delaware and N.D. Ill. (I think). But if a plaintiff has truly satisfied Rule 11, then it should at least be able to provide PICs (the “p” stands for preliminary, although in some jurisdictions they are no longer preliminary and more final without good reason).

    I can think of many reasons why faster identification of the accused product would be very helpful. Indemnification demands is just one.

    And Ned, number 4 in your list is essential. The current requirements don’t actually require this. Heck, the example in the form is what – an engine. There’s no requirement to specify which model in which year though. Most complaints these days say something very vague such as the defendant’s website, which could be almost everything. It is also useful to require further information for indirect and willfulness as currently required.

    Frankly, we might be better off going to much stricter pleading such as in Europe. Europe doesn’t seem to have any problems with this or do they?

  13. 2

    anon, do we really need much more than
    1) the names of the parties;
    2) proof of standing (ownership of the patent);
    3) jurisdiction and venue (common to all complaints;
    3) the patent number;
    4) the products that infringe;
    5) and the relief requested?

    What else do you think is important for proper notice?

  14. 1

    In pertinent part (of the memorandum): “A further reason to abrogate Rule 84 is the tension between the pleading forms and emerging pleading standards. The pleading forms were adopted in 1938 as an important means of educating bench and bar on the dramatic change in pleading standards effected by Rule 8(a)(2). They — and all the other forms — were elevated in 1948 from illustrations to a status that “suffice[s] under these rules.” Whatever else may be said, the ranges of topics covered by the pleading forms omit many of the categories of actions that comprise the bulk of today’s federal docket. And some of the forms have come to seem inadequate, particularly the Form 18 complaint for patent infringement.” “come to seem” does not sound like a forceful enough edict. Especially as the sentences that follow (with the references to Iqbal and Twombly) reference other areas of law than patent law (specifically antitrust and implicating official immunity).

    I think the committee needs to establish a better reason than merely “seems.”

    Further, the commitee note on the actual Rule 84 abrogation page indicates the purpose of “simplicity and brevity” has been met. If – as ‘seems’ apparent that pleading for patent cases needs to be less simple and brief, then this note is simply incorrect (and quite frankly, ‘seems’ a bit shady).

Comments are closed.