March 01, 2016 Articles

Pleading Patent Infringement after Elimination of Form 18

By Peter H. Kang and Sue Wang

November 2015 saw new patent lawsuits hit an all-time high, with approximately 259 new complaints filed on November 30 alone. The likely culprit? Changes to the Federal Rules of Civil Procedure that took effect on December 1, 2015, and eliminated Rule 84 and its appendix of form pleadings. Most notable among the forms eliminated: Form 18, a skeletal patent complaint popular with patent assertion entities. In this article, we review pleading case law in effect before December 1, the language and meaning of the amendment eliminating Form 18, and the possible impact that the rule change may have on patent litigation practice.

The Twiqbal Standard and Form 18
With regard to the requirements of a complaint, Federal Rule of Civil Procedure 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." In the 2007 antitrust case Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), the Supreme Court explained that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Two years later, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Court made clear that its Rule 8(a)(2) analysis extended to all civil cases. The pleading standard derived from these two cases, colloquially referred to sometimes as the "Twiqbal" standard, requires that a claim as pleaded have "facial plausibility" in order to withstand scrutiny under Rule 12(b)(6). That is, when all factual matters in a complaint are taken as true, a court must be able "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Mere "consistency" with liability, without more, "stops short of the line between possibility and plausibility of 'entitle[ment] to relief.'" Twombly, 550 U.S. at 557.

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