There is now a “broken spoke” in pleading practice in patent cases. Patent cases typically contain distinct claims for direct infringement (strict liability), indirect infringement (intentional tort), willfulness (unreasonable conduct) and joint infringement (“conspiracy light”). The laws on indirect, joint and willful infringement have been made stricter by the U.S. Court of Appeals for the Federal Circuit in a series of cases since the end of 2006 (sort of a pre-emptive judicial patent reform), while at the same time the U.S. Supreme Court has raised the bar for pleadings under Federal Rule of Civil Procedure 8. Most recently, the Supreme Court held in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), that the plaintiff must “plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

However, for years, patent litigators have relied on the terse Form 18 in the Appendix of the Federal Rules of Civil Procedure as a safe form for pleading direct infringement and used the same conclusory style to plead inducement, contributory, joint and willful infringement, devoid of detail. Nothing in Form 18 permits this for even direct infringement, let alone other claims, but the terse style of Form 18 has made this type of pleading seem acceptable.

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