Recently, the Supreme Court adopted proposed amendments to the Federal Rules of Civil Procedure, that barring any modification by congressional action, may eliminate the difference in pleading standards between patent infringement actions and all other federal actions. However, such standardization of pleading requirements may be short lived in view of the reintroduction of the Innovation Act, H.R. 9, in the House of Representatives, which proposes heightened pleading standard for patent infringement actions.
By way of background, the question of how much fact must be contained in a complaint for it to withstand a Rule 12(b)(6) motion to dismiss was seemingly laid to rest in 2007 when the Supreme Court, in Bell Atlantic Corp. v. Twombly, clarified 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.” However, it was not until the high Court’s decision in Ashcroft v. Iqbal, that the Supreme Court further clarified that its decision in Twombly — the heightened pleading standard to state more than merely the theory of the claim — applied to all federal civil actions.
But not exactly all federal civil actions. The Federal Rules of Civil Procedures append a number of sampling pleading forms, including under Rule 84, Form 18, “Complaint for Patent Infringement.” While a Form 18 Complaint sufficiently serves as a “notice pleading,” some have advocated that it fails to state a “plausible” claim for relief as required by Twombly and Iqbal and does not meet the heightened pleading requirement established by the Supreme Court. Nonetheless, in 2012, the Federal Circuit in R&L Carriers v. Driver Tech LLC, held that “to the extent . . . that Twombly and its progeny conflict with the forms and create differing pleadings requirements, the forms control.” Thus, the Federal Circuit provided that federal civil patent infringement complaints need not meet the heightened pleading standard set forth in Twombly/Iqbal.