Newly Amended Federal Rules May Eliminate Cookie-Cutter Patent Infringement Complaints

The amended Federal Rules of Civil Procedure will take effect on December 1, 2015. Before implementation of these Rules, in its complaint, a plaintiff alleging patent infringement merely had to place the defendant on notice of its infringement. This has been referred to as “notice pleading.” Over the last 10 years, the Supreme Court has attempted to increase the level of factual detail needed to place a defendant on notice through Bell Atlantic v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). However, the Federal Circuit in 2012 (In re Bill of Lading Transmission and Processing System Patent Litigation) found that if the Twombly/Iqbal standards conflict with Form 18 of the Federal Rules of Civil Procedure with respect to a direct infringement allegation, then Form 18 controls. So what has Form 18 required to be included in a patent infringement complaint? Using Form 18, a plaintiff must (i) plead that the court in which the complaint is filed has jurisdiction; (ii) plead that it is the sole owner of an issued US patent; (iii) plead that a class of products made, sold or used by the defendant infringes the issued patent; and (iv) state a demand for damages and/or injunctive relief. Accordingly, use of Form 18 has not necessarily required a high level of detail as to how a patent supposedly has been infringed. Continued use of Form 18 has tended to enable mass-filing of complaints because minimal factual support is required to be included in a complaint. This has led to some defendants feeling that a complaint does not provide sufficient notice for them to be able to begin evaluating the infringement claims at the outset of litigation.

As of December 1, 2015, Rule 84 will be deleted, which currently provides that the forms in the Appendix to the Rules “suffice under these Rules to illustrate the simplicity and brevity that these rules contemplate.” Accordingly, Form 18 will be eliminated as a mechanism to attempt to meet the patent infringement pleading standards. Further, the Rules will necessitate that a complaint must set forth a “plausible” claim of infringement. The wording of the Rules, however, may still give courts leeway in deciding what is required for a “plausible” claim of infringement. For example, some district courts may end up requiring an identification of the specific patent claims allegedly infringed and/or require a claim chart to be attached to a complaint. Case law will likely develop quickly to reconcile different actions taken by different district courts/judges.

There is a bill pending in Congress, the Innovation Act (H.R. 9), that, if passed, may assist in clarifying patent infringement pleading requirements. As presently written, the bill will require a plaintiff to submit a claim chart that analyzes each theory of patent infringement asserted in the complaint. However, it is possible that this bill may introduce more uncertainty in the district courts as to what the term “plausible” that appears in the Rules means with respect to a showing of a claim of infringement.

Because of these upcoming changes to the patent pleading requirements, in order to stand the best chance of surviving scrutiny, patent infringement complaints should include an identification of specific claims that are alleged to be infringed. Complaints also should identify specific accused products that are allegedly infringed and provide some level of infringement analysis explaining how the asserted claims are infringed by the specific accused products.

Defendants may have more leverage when complaints are filed that appear to lack sufficient detail, and defendants may consider a motion to dismiss or another means of forcing plaintiffs to articulate specific infringement theories or risk dismissal of a patent infringement complaint. While many plaintiffs have been providing some or all of this information in complaints, for others, more time and money may have to be invested in due diligence efforts prior to filing a complaint. More specifically, plaintiffs may be forced to more fully describe the infringement theories to satisfy defendants so that they may be able to evaluate the merits of the infringement claims prior to the opening of discovery.

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