No Suit For You! Changes to Patent Pleading Standard Issued By the U.S. Supreme Court Require More Than Bare Bones Pleading

By: Jessica Mendelson

In late April, the U.S. Supreme Court adopted changes to the Federal Rules of Civil Procedure which have significant implications for patent plaintiffs. In an April 29, 2015 order, the high court approved, without comment, changes initially approved by the Judicial Conference of the U.S. in September 2014. While these changes impact several different areas of civil litigation, they specifically impact patent litigation: unlike the previous edition of the Federal Rules, which allowed patent plaintiffs to "file bare-bone complaints," patent plaintiffs will soon be subject to the same heightened pleading standards required of plaintiffs in other types of civil litigation.

Under the prior edition of the Federal Rules of Civil Procedure, Rule 84 provided attorneys with model forms, including Form 18, a model patent complaint, which attorneys could rely on in filing suit. Form 18 required plaintiffs to include only minimal details, such as the patent number, the name of the patent, and an allegation of infringement. This type of pleading was very much at odds with the civil litigation standards established by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), which required plaintiffs to demonstrate that the claims pled were plausible. Under Twombly, the factual allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Conclusory statements alone do not satisfy such pleading standards: the plaintiff must provide factual allegations which provide the defendant with fair notice of the nature of the claim, as well as the grounds on which the claim rests. Previously, such heightened pleading requirements did not apply to patent cases, and plaintiffs were only required to plead the minimal details required by Form 18. In fact, the Federal Circuit ruled in 2012 that Form 18 rendered Twombly and Iqbal inapplicable to patent cases. See In Re Bill of Lading Transmission & Processing Sys. Patent Litig., 681 F. 3d 1323, 1336 (Fed. Cir. 2012).

Under the Supreme Court’s recent adoption of changes to the federal rules, Rule 84 is eliminated. As a result, Form 18 may no longer be relied upon, and plaintiffs must comply with the Twombly/Iqbal pleading standards for civil litigation. Therefore, bare bones pleading will no longer be permissible for patent cases. As of now, the new changes to the Federal Rules of Civil Procedure will go into effect on December 1, 2015. However, this may change, as Congress is currently considering bills which would raise the patent pleading standard even higher so as to curb abusive patent litigation. Whether Congress adopts such rule changes remains to be seen, and we will keep you posted as to any developments.