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US: Update on pleading standards in patent cases

It has been nearly two years since the Federal Rules of Civil Procedure were amended to eliminate Form 18, the World War II-era sample form that authorized plaintiffs to commence patent infringement litigation with only bare-bones allegations.

In the absence of Form 18, it is widely accepted that patent infringement complaints are now governed by the “plausibility standard.”

The Supreme Court spelled out this standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

However, given the apparent subjectivity built into the standard — and the lack of appellate guidance on what it requires in patent cases — a consensus on pleading standards has been slow to emerge from district courts.

From the inception of the Federal Rules of Civil Procedure in the 1940s until amendments made to them in December 2015, the template for pleading direct patent infringement was spelled out in Form 18 of an Appendix of Forms, which was incorporated into the federal rules via Rule 84.

The forms were originally intended to provide examples of just how little detail was required under the then-novel “notice pleading” approach introduced by the federal rules.

During most of that seven-decade span, Form 18 was relatively uncontroversial.

However, with the rise of patent monetization entities and so-called patent troll litigation over the past 10 years or so, the form made it possible to easily mass-produce copy-and-paste patent infringement complaints, arguably often without including sufficient detail for accused infringers to discern how their products allegedly infringed the patents.

Read the full article here, as published in the July 5, 2017, edition of Westlaw Journal Intellectual Property.