Pleading Your Case: Complaint Drafting for Patent Infringement Following the Abrogation of Form 18
The former Form 18 set out a bare-bones, minimum level of acceptability, complaint template for pleading patent infringement. In the not-so-distant-past, plaintiffs pleading patent infringement often relied on Form 18 when drafting complaints and rested easy knowing that their complaint would satisfy minimum pleading requirements. However, the relatively recent abrogation of Form 18 has upended this standard practice and left plaintiffs wondering with what level of specificity must they plead their case to avoid a potential dismissal.
Form 18 was very simple. It required the names of the parties, a statement describing the court’s jurisdiction, an identification of the asserted patents, a statement of infringement, a statement of notice, and a demand for relief. Typically, this could all be accomplished in less than two full pages. Several years prior to the abrogation of Form 18 the Supreme Court raised the default standard for complaint pleading in a pair of cases known as Twombly and Iqbal.1 Combined, these two cases require that complaints describe “enough facts to state a claim to relief that is plausible on its face” and opined that mere conclusory statements (i.e., threadbare recitals of claim elements) are not sufficient to support a reasonable inference of a defendant’s alleged liability.2 Failure to adhere to this new standard could result in a case being dismissed before an answer is even filed. Until it was abrogated on December 1, 2015, Form 18 provided plaintiffs in patent infringement cases a sort of exception to the Twombly and Iqbal rule.
Unfortunately for plaintiffs (but perhaps fortunately for defendants), patent infringement cases are rather unique, and thus the existing Twombly and Iqbal caselaw is not very helpful for navigating the post-Form 18 world when it comes to patent infringement complaint drafting. Further, the courts have not yet had enough time to grapple with these issues to set a definitive, uniform standard for how Twombly and Iqbal should be applied to patent infringement claims. To date, the caselaw on this topic is scattered and inconsistent. Generally, three groups of thought have emerged: 1) plaintiffs must allege facts for each asserted claim against the accused product(s) using basically an element-by-element analysis; 2) plaintiffs must allege facts that infer infringement of each element of at least one representative claim against one representative accused product, but not necessarily under an element-by-element analysis; or 3) plaintiffs must merely allege that the accused product has some of the unique features of patented system. Until a more definitive, uniform standard emerges, plaintiffs should approach complaint drafting using common sense and good judgment while airing on the side of over-inclusion.
In a representative case following the first school of thought, a judge dismissed a patent infringement complaint as not being plausibly alleged despite the complaint being 35 pages long and including an analysis of a representative claim against the allegedly infringing product.3 The judge found the complaint lacking because the factual allegations were sparse, the plaintiffs did not reverse engineer the allegedly infringing product, and the complaint was filed in less than a month after learning about the product, apparently suggesting that further factual investigation was warranted. The judge found that the plaintiffs did not bridge the gap between the technical claim language and the accused features for some of the claims.
In another representative case, this one following the second school of thought, the court upheld a complaint that described: 1) the accused products and the specific aspects/functions of the accused products that allegedly infringed the plaintiff’s patents; and 2) the ways in which the accused products met the asserted patent claims.4
In yet another representative case, this one following the third school of thought, a judge found a complaint to pass muster where it specifically named the allegedly infringing product and alleged that it performed the same unique function as the plaintiff’s patented system.5 In this case, the judge did not require the plaintiff to analyze an exemplary claim or conduct any kind of element-by-element analysis.
There is still a great deal of case law to be developed for this new standard and each case will be decided under its unique circumstances. Indeed, Twombly and Iqbal were intended to provide a case- and fact-specific framework for analyzing pleading sufficiency. A court may consider, for example, the complexity of the technology involved, the availability of information, and the need for claim construction when analyzing the sufficiency of the complaint, despite what school of thought the court normally follows.
In some cases, a wealth of factual information is available to the would-be plaintiff. For example, the would-be plaintiff may be able to pull detailed technical schematics from the would-be defendant’s website or purchase and reverse engineer the allegedly infringing product. In such cases, a court may be inclined to follow the first school of thought. In other cases, this kind of factual information may not be publicly available or otherwise impossible to obtain. In such cases, a court may be inclined to follow the second or third school of thought. However, it is likely acceptable for a plaintiff to plead based upon information and belief so long as the plaintiff takes advantage of all facts available to it.6 Regardless, where specific factual support is not available plaintiffs should specifically articulate why it is reasonable to believe that the allegedly infringing product contains an otherwise unaccounted for element. Perhaps the element is standard in the industry? Perhaps it is a necessary component of a known element? Perhaps it is required (or very likely present) to perform an advertised function? Or perhaps there is an engineering reason why one would include the element?
At a minimum, plaintiffs should: 1) specifically identify the allegedly infringing products; 2) specifically identify the patents and claims being asserted; and 3) provide some analysis tying the asserted claims to the allegedly infringing products using all available factual information. Until a more uniform standard emerges, plaintiffs should use common sense and good judgment and air on the side of caution, giving serious consideration to providing a claim-by-claim analysis for each asserted claim of each asserted patent, or at least explain why one is not possible.
On the other side of the coin, the defendants of the world should note that the motion to dismiss is now a much more powerful weapon. Where appropriate, defendants should seriously consider filing a motion to dismiss under the new standard and attack a plaintiff’s complaint where it fails to specifically identify an infringing product(s), fails to specifically identify asserted claim(s), lacks factual support, or provides conclusory analysis, particularly with respect to the especially unique features of the patent.
Given the uncertain landscape of patent infringement complaint pleading in the post-Form 18 world, plaintiffs should continue to draft their complaints using common sense and airing on the side of caution. The application of Twombly and Iqbal to patent infringement claims is an issue ripe for further opinion by the district and Federal Circuit courts. Until a more definitive and uniform standard emerges, both plaintiffs and defendants alike should continue to monitor this area of the law for updates.
If you have any questions about complaint drafting for patent infringement, contact your patent attorney to seek advice.
1 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).
2E.g., Twombly, 550 U.S. at 554-55, 570.
3RainDance Techs. Inc. v. 10x Genomics, Inc., No. 15-cv-00152, Dkt. 28 (D. Del. Mar. 4, 2016).
4 Windy City Innovations, LLC v. Microsoft Corp., No. 16-cv-01729-YGR, (N.D. Cal. June 17, 2016).
5InCom Corp. v. The Walt Disney Co., No. 15-cv-3011, Dkt. 26 (C.D. Cal. Feb. 4, 2016).
6See e.g., Vigil Systems Pty. Ltd. v. Trackit, LLC, 16-cv-198, 2016 WL 4595538 (S.D. Cal. Aug. 22, 2016)(stating that pleading based upon information and belief in patent cases is acceptable when the facts are not otherwise available).
