Posts Tagged: "FRCP Form 18"

Last December, the 2015 Amendments to the Federal Rules of Civil Procedure abolished Rule 84 and the Appendix of Forms, removing any doubt that Twombly’s plausibility standard applies to claims for direct patent infringement. The elimination of Rule 84 and Form 18 raised many questions about whether pleading standards for direct infringement would change and, if so, how. Over the past year, many district courts have tried to answer these questions. Below is an overview of the different conclusions reached by district courts, but first, it would be worth reviewing Federal Circuit precedent on the issue.

The Federal Circuit affirmed a district court’s dismissal under Rule 12(b)(6) for failure to meet the pleading standards for joint patent infringement, holding that Form 18, from the Appendix to the Federal Rules of Civil Procedure, does not apply to a claim of joint infringement… Form 18 is not sufficient per se, and pleadings must adhere to the Twombly/Iqbal pleading standard, and must do so for each element of the allegedly infringed patent claim. This is particularly true for pleading joint infringement.

2015 saw the second-most patent infringement cases brought to court, according to Lex Machina’s data. A total of 5,830 patent cases were filed, a 15 percent increase over the 5,070 patent cases which were filed during 2014. 2015 still trailed behind 2013 in terms of patent infringement cases; that year set the high-water mark for patent infringement cases with 6,114 cases filed in that year.

This bill has elements that can be part of an ultimate solution, however it cannot escape being a rubber stamp for a viewpoint that sees intellectual property rights as nuisance rather than a principal cog in the American invention machine. Unfortunately, if the Congress moves forward and ratifies this bill in the form proposed, it will create more problems than the one it is solving.

Congress won’t accomplish much, if anything, if it gets mired in the substance of patent law during the inevitable patent reform cycle in the 114th Congress. Similarly, vilifying all innovators as if everyone who owns a patent is somehow evil and a patent troll will only work to divide the industry, and likely divide enough Senators to make getting anything enacted a virtual impossibility. But if Congress decides to focus on process, procedure and non-substantive patent matters like fraudulent and misleading demand letters, real reform is not only possible but likely. Further, by focusing on process and procedure anything that does get done would improve the patent system, won’t harm innovators and would strike a significant blow against the business model employed by the abusers.