The tragic attacks of Sept. 11, 2001, changed our lives in many ways. Some, like additional security at airports, were not particularly surprising, but no one could foresee that those events would ultimately result in a change in the pleading standard in patent cases. The route between Sept. 11 and patent cases runs through the U.S. Supreme Court’s ruling in Ashcroft v. Iqbal, 556 U.S. 662 (2009), which was originally brought by an individual who claimed unlawful racial profiling by the FBI in the post-9/11 climate, and in which the court held that the new heightened pleading standard, established in Bell Atlantic v. Twombly, 500 U.S. 544 (2007), applies not just to antitrust cases but to all civil actions.
Twombly and Iqbal complicated the lives of patent litigation practitioners by changing the pleading standards under Rule 8 of the Federal Rules of Civil Procedure. Under Rule 8, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Prior to Twombly and Iqbal, a motion to dismiss a complaint would only be granted when there were no facts in support of a plaintiff’s claim that would entitle the plaintiff to relief, a fairly liberal standard that goes back to the Supreme Court’s decision in Conley v. Gibson (1957). This standard used to be easily met by a terse patent infringement complaint, an example of which was helpfully included in the FRCP as Form 18. Under the new standard, however, a plaintiff is required to allege enough facts that, when taken as true, makes it probable that it is entitled to relief. Since Form 18 is still part of the FRCP, there are now different standards governing different parts of the complaint. This situation creates uncertainty on both sides of the "v." and leads to very unpredictable results in motion practice.
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