Plausible Pleading in Patent Suits: Predicting the Effects of the Abrogation of Form 18

On December 1, 2015, amendments to the Federal Rules of Civil Procedure took effect. The changes included, among other things, the abrogation of the Appendix of Forms, which contained templates for summons, complaints, answers, and other litigation documents. Prior to its abrogation, Form 18—a template for a “Complaint for Patent Infringement”—was widely utilized by patent plaintiffs in crafting infringement complaints. Form 18 was created during the Conley pleading regime, when conclusory allegations were generally sufficient to survive a motion to dismiss. Accordingly, the sample allegations in Form 18 were conclusory and bare-bones in nature. Under Conley, plaintiffs who followed this template almost always survived motions to dismiss. In 2007, the Supreme Court announced a heightened pleading standard in Bell Atlantic v. Twombly, and in 2009, it clarified that the new standard applied to all federal civil cases. Under the new standard, conclusory allegations alone are not sufficient, and complaints must be plausible on their face. Despite clear direction from the Supreme Court that the new “plausibility” standard applied to all cases, the Federal Circuit and many district courts continued to allow patent infringement plaintiffs to use Form 18’s conclusory language. With the elimination of Form 18 from the Federal Rules, courts are now unquestionably bound to apply the plausibility standard to patent infringement pleadings. Under the plausibility standard, plaintiffs will likely be required to identify the patent claims they believe are infringed. Depending on the complexity of the patent and the defendant’s business, plaintiffs may also be required to identify the accused product by name or model number. Finally, to move a claim across the line from conceivable to plausible, plaintiffs may need to allege that each claim limitation has a corresponding element in the accused product. The Northern District of California’s Patent Local Rules would serve as a close approximation of the approach outlined here. These heightened requirements will reduce frivolous pleadings, decrease discovery costs, and encourage early settlement in competitor cases