Detail Necessary for a Lawsuit: “Your Products Infringe My Patent”

by Dennis Crouch

Disc Disease Solutions v. VGH Solutions (Fed. Cir. 2018) [17-1483.Opinion.4-27-2018]

Disc Disease’s asserted patents relate to an inflatable air-brace for spinal support. U.S. Patent Nos. 8,012,113 and 7,618,509. The accused infringer sells three different inflatable spinal braces.  However, after considering the complaint filed by Disc Disease, the district court dismissed the case with prejudice for failure to state a claim upon which relief can be granted (R.12(b)(6)).  In the process, the district court rejected Disc Disease’s request to file a first amended complaint.

The timing of the complaint filing is somewhat important. It was filed on November 30, 2015 — the day before the rules of Civil Procedure were officially amended to eliminate the short-form patent complaint (Form 18).   Prior to that change, “Form 18 in the Appendix of Forms provided a form adequate to plead a direct infringement patent claim. See In re Bill of Lading Transmission & Processing Sys. Patent Litig., 681 F.3d 1323, 1334 (Fed. Cir. 2012).” Although the rules of Civil Procedure liberally allow plaintiffs to file a first-amended-complaint, the court here held that Disc Disease’s request to amend was not filed in a timely fashion and thus was appropriately rejected.

Under Iqbal and Twombly, a complaint must include allegations of fact sufficient to allow a “reasonable inference that the  defendant is liable for the alleged misconduct.”

Here, the complaint identified each of the alleged infringing products and then broadly alleged that the products meet “each and every element of at least one claim” of each asserted patent.  The claims did not include a claim chart, reference to any specific claim, or any specific element-by-element analysis.  Noting those failures, the district court ruled that the complaint lacked plausibility because it failed to “explain” the alleged infringement.

On appeal, the Federal Circuit has reversed — holding that the broad infringement allegation is sufficient under Iqbal/Twombly — at least for this relatively simple case. The court writes:

Disc Disease’s allegations are sufficient under the plausibility standard of Iqbal/Twombly. This case involves a simple technology.
The asserted patents, which were attached to the complaint, consist of only four independent claims. The complaint specifically identified the three accused products—by name and by attaching photos of the product packaging as exhibits—and alleged that the accused products meet “each and every element of at least one claim of the ’113 [or ’509] Patent, either literally or equivalently.” These disclosures and allegations are enough to provide VGH Solutions fair notice of infringement of the asserted patents. The district court, therefore, erred in dismissing Disc Disease’s complaint for failure to state a claim.

Judge Reyna’s decision here decides the case at hand, but does not provide substantial guide-posts beyond the general rule – Provide Fair Notice.  What we do know is that in a simple case it will be sufficient to simply identify (1) the patents being asserted and (2) the products being accused.

 

15 thoughts on “Detail Necessary for a Lawsuit: “Your Products Infringe My Patent”

  1. 6

    For design patents you could change the title here to “Detail NOT Necessary for a Lawsuit: Your Products Infringe My Patent”
    See the Ars Technica report that truck company Nikola Motors sued Tesla, claiming that the Tesla Semi infringes Nikola’s design patents on it’s hydrogen fuel-cell Nikola One vehicle. Although the Fed. Cir. has repeatedly said the scope of a design patent claim is narrowly limited to its solid line drawings, and thus made prior art invalidation more difficult, conversely it has not enforced prompt low cost summary judgments of non-infringement, even with numerous overall differences between the full combination of those solid drawing lines and the accused product, much less a more specific complaint.

    1. 6.1

      It’s a drawing.

      How much more specific do you want the complaint to be?

      (no snark intended)

      1. 6.1.1

        Good question, but then why isn’t “Its a printed claim, how more specific do you want the compliant to be” sufficient for a utility patent?

        1. 6.1.1.1

          Up until last year, did it not?

          Further, is there not a world of difference between a picture and (word) patent claim?

  2. 5

    I think the reason that the decision reveals very little reasoning is that the facts cannot recur, almost by definition.

    The initial complaint was filed before Dec 1 2015, and all agree (apparently) that the original complaint met the old Form 18 pleading standard. That can never occur again.

    The patent owner offered an amended complaint (but did it in a footnote, not in a separate motion as required by the district court’s local rules, so the district court refused the amended complaint). Parties that dumb don’t come along every day.

  3. 4

    This is indeed a thin complaint by current standards. Will be interesting to see if plaintiff’s start going back to just identifying a product and a claim vs. identifying some facts for each element.

    1. 4.1

      Alternative? Assert “at least claims 1,2 and 3” against “at least product ____”

      1. 4.1.1

        I think that the point is that such is already there…

        1. 4.1.1.1

          Yeah, to avoid the extra motion practice – I’ve seen many recent complaints identifying specific facts for each element for at least one claim for each patent.

          I suspect we will starting seeing the adoption of pleading “your products x, y, and z” infringe at least claim w of the ‘123 patent.”

  4. 3

    It remains to be seen what the Fed. Cir. will do with a complaint simply asserting plural patents against a company with plural products. [Yes, some must still be filed – I saw one recently.]
    But in newer suits than this the defendant’s Iqbal/Twombly challenge, to be timely, will have to be made very promptly after the complaint is served. Thus, the patent owner will also be very promptly requesting permission to file an amended complaint, and that will usually be approved.

    1. 3.1

      The complaint at issue has two patents and several products, FWIW.

    2. 3.2

      The Fed. Cir. must be aware that they and their prior decisions were the specific target in the removal of FRCP Form 18, and may harbor some resentment?

      1. 3.2.1

        … they have been well fire-hosed in prior reaching up for the bananas in the middle of the cage…

  5. 2

    Unrelated. But there is an interesting case name filed yesterday for design patent infringement.
    Nikola v. Tesla, AZD-2-18-cv-01344.

  6. 1

    Given the additional details in the body of the article, perhaps the title should read:

    Your products “X” and “Y” infringe my patents “A” and “B.”

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