The U.S. Supreme Court needs to address the separate standard the Federal Circuit has created for determining the adequacy of patent infringement complaintsa standard based solely on Form 18 in the Appendix to the Federal Rules of Civil Procedure. While even experienced litigators may be unfamiliar with the Appendix of Forms at the back of the Federal Rules, courts and litigators are well familiar with the Supreme Court’s two major decisions on pleading standards in Bell Atlantic v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under these decisions, a complaint must allege sufficient facts to state a "plausible" cause of action. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft, 556 U.S. at 678. Significantly, Twombly was grounded in the proposition that complex litigation (in that case, antitrust litigation) is extremely expensive and should not be allowed to go forward without a threshold finding of plausibility:
[T]he threat of discovery expense will push cost-conscious defendants to settle even anemic cases before reaching those [summary judgment] proceedings. Probably, then, it is only by taking care to require allegations that reach the level suggesting [antitrust] conspiracy that we can hope to avoid the potentially enormous expense of discovery….
Twombly, 550 U.S. at 559.
Given this backdrop, it would appear that patent cases, which are, without a doubt, complex and remarkably expensive, would unquestionably be subject to the Twombly/Iqbal threshold of plausibility based on allegations of fact. But that is not the lawor at least it is not the law as pronounced by the Federal Circuit. So why are patent cases alone not subject to Twombly and Iqbal? Because there is Form 18, which sets forth exactly the type of threadbare, conclusory allegations that were identified as inadequate in Twombly and Iqbal. Form 18 was adopted in 1938, and last revised in 2007three weeks before the Supreme Court’s decision in Twombly.
Form 18 vs. ‘Twombly’ and ‘Iqbal’
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