McZeal v. Sprint Nextel (Fed. Cir. 2007).
McZeal’s pro se patent infringement complaint was dismissed for failure to state a claim. On appeal, the CAFC reversed – finding that the complaint was sufficient.
In particular, the court found that the complaint is not required to specifically describe where each element of the asserted claim is found in the accused device. Those specifics regarding infringement “is something to be determined through discovery.”
In its analysis, the court relied upon FRCP Form 16, which provides an acceptable patent infringement complaint that is quite short.
Form 16. Complaint for Infringement of Patent
1. Allegation of jurisdiction.
2. On May 16, 1934, United States Letters Patent No. ____ were duly and legally issued to plaintiff for an invention in an electric motor; and since that date plaintiff has been and still is the owner of those Letters Patent.
3. Defendant has for a long time past been and still is infringing those Letters Patent by making, selling, and using electric motors embodying the patented invention, and will continue to do so unless enjoined by this court.
4. Plaintiff has placed the required statutory notice on all electric motors manufactured and sold by him under said Letters Patent, and has given written notice to defendant of his said infringement. Wherefore plaintiff demands a preliminary and final injunction against continued infringement, an accounting for damages, and an assessment of interest and costs against defendant.
Although amended slightly the 1960’s the form was originally drafted in 1937. A minimally acceptable complaint thus has four requirements:
- Allegation of jurisdiction;
- Statement of patent ownership;
- Statement of patent infringement by the defendant; and
- Demand for relief.
The form also gives notice of notice of infringement through marking or otherwise. However, marking is only useful to increase damages.
Judge Dyk dissented (in part) — arguing that the Supreme Court’s recent Twombly (2007) decision raised the pleading requirements. That case requires more than formulaic recitation of “labels and conclusions.” Rather, the complaint must provide grounds for an entitlement of relief.
Notes:
- Judge Dyk hopes for an updated version of Form 16 — any drafting volunteers?
- Read the case.
- The majority opinion might not apply to you — the court could easily later adopt Judge Dyk’s position for cases not involving a pro se plaintiff.
- Interestingly, the complaint was 90 pages long (quite long for a complaint), but said very little.
I am not at all surprised by this result. Perhaps recognizing the mischief Twombly could create, the Supreme Court applied Twombly in a per curiam opinion issued several weeks later, stressing in particular that “specific facts are not necessary.” The per curiam should be a big red flag to any jurist who is tempted to read Twombly literally and to dismiss complaints that comply with the FRCP forms. (And when read in light of the per curiam, Twombly does not dictate any revision of the FRCP forms).
“… the defendant will likely whomp on him on the merits.”
Or settle for something less than the cost of litigation, if Sprint is smart.
I’d bet Mr. Alfred McZeal, Jr. pro se has abundant spare time on his hands, and he could really run up Sprint’s litigation bill, especially at B&B’s rates.
So the pro se patentee got his case reinstated against B&B. With a 3-column independent claim, how many out there predict he’ll actually win on the charge of patent infringement? Sounds like the appellate judges just wanted to make sure that the particular procedural matter at issue didn’t deny the patentee his day in court…where the defendant will likely whomp on him on the merits.
This guy should be suing the Federation and Captain Kirk because the patent discloses an “interstellar . . . communicator.”
This case is a good example why independent inventors would be wise to seek the advice of an attorney.
Also, the patent is a good example of the PTO not doing their job. For one thing, many claim elements are identified only by trademarks.
ironicslip, your stream of consciousness drivel does not make any sense. Care to try again, in English this time?
a few more of these will help value the services of law firms who generally eschew individuals and small companies.
maybe mark lemley can study this case and prevent hasty generalization by comparing the level of randomness in any given judgement (if 50% success if considered “random” regardless of the value of the damages). the apparent lack of regard for pro se applicants in general should be weighted against the estimated risk of dj or rule 11 hurdle. sometimes the little guy (even if he has filed 100s of cases) actually does the job better — no finance committee and REAL skin in the game…
bravo!
when’s the texas-sized tea party?
Look up the patent at issue (USP 6763226), which has independent claims that span at least 3-4 columns. I’m guessing this guy prosecuted the patent pro se also.
Hats off to the pro se litigant for taking on Baker Botts and winning at the appeal level.
It should be noted that the 12(b)(6) motion was made orally during his hearing (and maybe accompanied with a wink and a nod) and not on briefs. Good litigation strategy employed by counsel against any pro se litigant! It should also be noted that this pro se litigant is no virgin when it comes to self-help litigation. This man was essentially dubbed “vexatious” by Judge Hughes.
Search query “06-1775” (2006) in the S.D. Texas if interested.
Regarding that form complaint, if the small patent owner has little money as compared with the alleged large corporate infringer then one might and should be reluctant to send a cease and desist letter – you might find yourself be hit with a DJ action is a jurisdiction where it will cost the patent owner much more to fight the battle. This would be especially true if the alleged infringer has a history of litigation. File the complaint and then send a cease and desist letter. If no response, amend to add a claim for willful infringement.
I’m not really surprised by this. I’ve never seen a patent complaint that “specifically describe[s] where each element of the asserted claim is found in the accused device.” In fact patent complaints are about the sketchiest complaints in litigation — they don’t even have to mention which products infringe.
What I find so remarkable is that a pro se Plaintiff reversed a Southern District of Texas decision dismissing his patent and trademark infringement claims against Sprint Nextel who was represented by Baker Botts!
I think the CAFC would be hard pressed not to allow a form to past muster. Don’t the Judges write the FRCP?
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