Two cases decided last month highlight the somewhat disparate pleading standards in patent infringement actions among districts after Twombly and Iqbal. In The Nielsen Co. v. comScore, Inc., a plaintiff in the Eastern District of Virginia overcame a motion to dismiss infringement claims. Case No. 11-cv-168 (E.D.Va. Aug. 19, 2011) (Davis, J.). The court held that the claims for direct infringement met the lenient pleading standard of Form 18 provided under the Federal Rules. While in Medsquire LLC v. Spring Med. Sys. Inc., the district court for the Central District of California granted the defendant’s motion to dismiss. 2-11-cv-04504 (C.D. Cal. August 31, 2011) (Nguyen, J.). The court held the plaintiff’s Form 18 pleading resulted in conclusory statements that failed to include any facts identifying the relevant aspect of the [accused product] that infringed the patents and the complaint was insufficient to meet the “plausibility” standard set forth in Twombly and Iqbal.
Despite the heightened standard created in Twombly and Iqbal, district courts generally have not required heightened pleadings in the patents context with regard to direct infringement. In McZeal v. Sprint Nextel Corp., a pre-Iqbal decision, the Federal Circuit set a low bar for pleading direct infringement holding that the allegations of a pro se plaintiff must only meet the requirements of Form 18 of the Federal Rules. 501 F.3d 1354 (Fed. Cir. 2007). Furthermore, Federal Rule 84 expects a court to accept a pleading made in conformance with the forms as sufficient. Thus, for most districts the sufficiency of a Plaintiff’s direct infringement allegations can be met by following the dictates of Form 18. The Court in Medsquire, however, distinguished McZeal on the grounds that Plaintiff was represented by sophisticated counsel and the fact that the McZeal decision came before the holding in Iqbal.
A claim of direct infringement under Form 18 requires only: an allegation of jurisdiction and the specific patent law infringed; the identification of the patent and a statement that the plaintiff owns the patent; an identification of at least one infringing product; a statement that the defendant has been infringing the patent “by making, selling, and using” the product and a demand for relief. Under a Form 18 complaint, a plaintiff is not required to plead specifics as to how an allegedly infringing product works. See e.g. Adiscov, LLC v. Autonomy Corp., 762 F.Supp.2d 826 (E.D.Va. 2011), Mark IV Indus. Corp. v. Transcore, L.P., Case No. 09-cv-418 (D.Del. Dec. 2, 2009); Sharafabadi v. University of Idaho, Case No. 09-cv-1043 (W.D. Wash. Nov. 27, 2009); Automated Transactions, LLC v. First Niagara Fin. Group, Inc., Case No. 10-cv-00407 (W.D.N.Y. Aug. 31, 2010); Traffic Info., LLC v. Yahoo! Inc., Case No. 09-cv-246 (E.D.Tex. April 13, 2010); Microsoft Corp. v. Phoenix Solutions, Inc., 741 F.Supp.2d 1156 (C.D. Cal. 2010); and Apple Inc. v. Eforcity Corp., Case No. 10-cv-03216 (N.D. Cal. Apr. 5, 2011).