Patent Infringement Complaints After the Change in Rules

For many years prior to Dec. 1, 2015, patent infringement complaints were exempt from the pleading requirements of Federal Rule of Civil Procedure 8. Prior to the change, FRCP 84 provided that infringement pleadings that complied with FRCP Form 18 automatically satisfied the pleading requirements of FRCP 8(a) and were effectively immunized against an ­attack regarding the sufficiency of the pleading. Compliance was relatively simple since Form 18 only required a direct ­infringement complaint to set forth: (1) an allegation of jurisdiction; (2) a statement that the plaintiff owns the patent; (3) a statement that the defendant has been infringing the patent by making, selling, or using a device embodying the patent; (4) a statement that the plaintiff gave the defendant notice of its infringement; and (5) an injunction demand. (See McZeal v. Sprint Nextel, 501 F.3d 1354, 1356-57 (Fed. Cir. 2007); and K-Tech Telecommunications v. Time Warner Cable, 714 F.3d 1277, 1283 (Fed. Cir. 2013).) The Dec. 1, 2015, federal rules changes brought a sea change to the requirements for pleading patent infringement. With the passing of Form 18 into legal history, patent infringement complaints are subject to the pleading requirements of FRCP 8; however, the courts are struggling to deal with the change and how to apply it to pre-existing complaints. This article presents a snapshot of the cases dealing with transiting to and defining the new requirements.

Historically, courts denied approximately 70 percent of the motions to dismiss for failure to state a claim or for a more ­definite statement for direct infringement files against Form 18 complaints. Courts generally examined the complaint against the five Form 18 requirements and held that pleadings which satisfied those five requirements were valid, as in McZeal; Beco Dairy Automation v. Global Tech Systems, 2015 U.S. Dist. LEXIS 130503, at *11-13 (E.D. Cal. 2015); Fairchild Semiconductor v. Power Integrations, 935 F. Supp. 2d 772, 775-76 (D. Del. 2013); and Clouding IP v. Amazon.com, 2013 U.S. Dist. LEXIS 73655, at *8, *15 (D. Del. 2013).