The amendments to the Federal Rules of Civil Procedure heightened the pleading standard for patent lawsuits. In particular, the amendments abrogated Rule 84, which provided that the forms in the Appendix of Forms were illustrative and sufficient, and eliminated the “Complaint for Patent Infringement” Form 18 of the Appendix of Forms. Removing Rule 84 and Form 18 resulted in an important change in the pleading standard. Patent litigators should take note of the change in rules and consider the following comments to avoid summary dismissal of their complaints.
1. Standard under form 18 of the Appendix of Forms. Critics of Form 18 argued that the pleading standard under Form 18 provided only a bare framework of a patent infringement claim, thereby failing to meet the standard established by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. In those cases, the court provided that a complaint must go beyond providing mere notice and must contain “enough facts to state a claim to relief that is plausible on its face.” Critics argued that Form 18 enabled plaintiffs to plead inadequate factual matter because, for example, Form 18 did not even require the complaint to identify any of the asserted claims or the names of the accused instrumentalities. And until the recent rule change, satisfying Form 18 was deemed sufficient, as acknowledged in K-Tech Telecommunications v. Time Warner Cable in 2013 from the U.S. Court of Appeals for the Federal Circuit.
