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!