Iqbal, Twombly, the Demise of Form 18, and Rule 12 Hell

A few months ago, I was at the Eastern District of Texas Bench and Bar Conference, and I started talking to a federal district judge about her views of the then-imminent demise of Form 18, the form that essentially made it sufficient for a complaint alleging direct infringement to include only barebones allegations of the facts.  Her response was, “it’s going to be Rule 12 hell.”

And she was right.

Where the law now is is this, it seems:  to state a claim of direct infringement, a patentee must state factual content — which excludes legal conclusions and conclusory statements — which, if taken as true, plausibly shows infringement.  What she saw happening is what is happening, and a good example of this just happened in an order, Atlas IP LLC v. Pacific Gas & Elec. Co., from Judge LaPorte of the Northern District of California.

Where we are, it seems, is that we’re going to have to apply rules from Iqbal and Twombly about how legal conclusions don’t count to patent claims, where what matters is, of course, the legal conclusion about what the claim means.  Once that clutter is removed and it becomes clear that legal conclusions can sometimes ‘count’ for purposes of stating a claim, we are still going to have to face defendants filing motions asserting that the alleged interpretation is an “implausible” interpretation of the claims.  And we’re going to do that element by element.

So, “Markman Plausibility” hearings to decide Rule 12(b)(6) motions are coming your way?

Rule 12 hell?  Rule 12 hell no!

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.

5 thoughts on “Iqbal, Twombly, the Demise of Form 18, and Rule 12 Hell

  1. 4


    I think “Rule 12 hell? Rule 12 hell no!” overdoes it. I see a great deal of good to come out of an Iqbal pleading standard. Besides the obvious benefit of tossing infringement contentions that have no merit, the exercise of coming up with a plausible claim construction and applying it to an accused product or process should get the parties to focus on the merits of the case early on. In particular, feedback from the judge should inform a calculation about whether to press forward or settle. Considering the expense (including now more attorney’s fees), plaintiffs who cannot convince a judge that it is plausible they would succeed on the merits should think seriously about withdrawing. Conversely, defendants should be able to read the tea leaves as well.

    Complaints based on Form 18 take little thought and hence cost little. The new standard will take more effort, but the complaint, answer, and amended complaint stage is a whole lot cheaper than later proceedings because achieving plausibility should not require experts or much discovery. In the case of a process, I can envision more discovery, but this could still be limited.

    I assume the same standard would apply to counterclaims but am not sure about affirmative defenses. David, can you chime in?

    In any case, I don’t see this as being pro- or anti-patent but pro-litigation efficiency. I predict that judges (who have been dealing with 12(b)(6) motions in all other cases forever) will learn after some initial teething troubles to use this to good effect.

    The Atlas case was complicated by a lot of history, but the judge did a fine job. “The complaint does not speak to the frame limitation,” an important limitation in the only asserted claim, so “Plaintiff shall file an amended complaint, if any, within two weeks of the date of this Order.” That would be March 23 in case anyone could dig it up.

  2. 3

    My impression is that until Iqbal and Twombly, we largely had the binary choice of either having notice pleading or NOT having notice pleading.

    Strictly speaking, Iqbal and Twombly cemented the presence of certain types of cases in which mere notice pleading was deemed to be insufficient to protect either one side or the other in the engagement of the court system.

    There were certain specific causes of action for which it was recognized (i.e., accusations of fraud) where the gravitas of the accusation (and hence mere pleading with notice) was viewed as creating damage or the potential of damage, thus creating a third aspect of pleading. I would call this: notice with some substantiation of cause pleading.

    The demise of Form 18 in particular (and if one reads some of the underlying history and sees the conflicting statements – such as Form 18 has met its purpose), can be (and should be) seen as the result of the political wrangling about “patents being bad.”

    We have made the rightful attempt at enforcing a granted patent right into the equivalent of those things that required the level of “notice with some substantiation of cause pleading.”

    When one takes a step back and objectively compares this type of rightful enforcement choice of engaging the courts with any and all other choices to engage the courts, it can be fair to say (that is, a colorable argument can be made) that plain notice pleading is no more.

    The very types of “danger” inherent in a patent suit can be seen to exist in ANY type of suit, thus the elevation of patent enforcement into the previously reserved for space of things like libel also necessarily elevate all other “like” level actions.

    It is with a touch of irony then to employ the “thinking process” as reflected in the Supreme Court’s eBay case – that patent law is not special when it comes to court processes and use that very same model to “de-specialize” the change in pleadings and NOT separate patent enforcement from other types of choices involving the court system.

  3. 2


    I mentioned this point on this very board back when all the anti-patent crusaders were thumping their chests about how this “patent reform” was going to improve litigation,reduce patent case filings, costs. etc. Nonsense. All of these “deforms” were promoted by large D firms looking to pad their bills with even more billable hours. They’ve now introduced yet another procedural mechanism to do precisely that, because every D atty will be bending the ear of the client about how the case is not properly pled. Anyone with history in the business knows these “reforms” only help lawyers, not the parties.

  4. 1

    Patent litigation one time was all about the trial. Then it was the summary judgment motion. Next it became Markman hearings. Today, rule 12.

    Obviously, in order to resolve these issues about sufficiency of the complaint one is going to have to conduct a Markman hearing at the pleading stage.

Comments are closed.