As many of you know, my main area of academic interest is cyberlaw and intellectual property. But I also spent a fair amount of time teaching civil procedure and have an interest in how procedure affects substantive rights. I have certainly been aware of the major change in federal pleading brought about by Bell Atlantic v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Supreme Court transformed how federal pleading works from the “notice pleading” recognized by Conley v. Gibson, 355 U.S. 41 (1957), to a new standard often called plausibility pleading. See Twombly, 550 U.S. at 556.
Although the Supreme Court couched the transformation of pleading standard as an attempt to clarify a rule that had been “questioned, criticized, and explained away,” Twombly, 550 U.S. at 562, it was, in reality, a modification of the rules of pleading that had been written into the rules from their origin in the 1930s. This difference has now returned to cause great difficulty in the intellectual property field, particularly for patent infringement claims. As several courts have now discovered, the Supreme Court’s modification of Rule 8 without following the Rules Enabling Act’s provisions that allow the rules to be amended, see 17 U.S.C. §§ 2071–74, have left us with a set of federal rules that are internally inconsistent. Rule 84 reads, “The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.” Comparing the new plausibility pleading standard with Form 18 (supposedly sufficient to state a claim in patent infringement) brings out the conflict. As one court stated:
Without doubt, Twombly and Iqbal also implicate the “sufficiency” statement in Rule 84. In particular, when Rule 84 says that a form “suffices under these rules,” it obviously refers, inter alia, to Rule 8(a) and to Form 18 which posits what was thought before Twombly and Iqbal to be sufficient, at least as to claims of direct infringement. And, if the Supreme Court, as it clearly did in Twombly and Iqbal, says that Rule 8(a) must be applied differently than is provided for in a form, then the viability of the form must be measured against the new standard, even if the effect of doing so is to nullify the form.
Macronix Intern. Co., Ltd. v. Spansion Inc., 2014 WL 934505 (E.D. Va. 2014). In other words, Twombly and Iqbal have repealed Rule 84.
Another district court dealing with an similar patent infringement claim was willing to call out the Supreme Court:
The Forms in the Federal Rules Appendix, such as Form 18, satisfy the federal pleading rules and illustrate the simplicity and brevity that these rules contemplate. Rule 84 and the Advisory Committee notes to the 1946 amendment of Rule 84 make clear that the proper use of a form contained in the Appendix of Forms effectively immunizes a claimant from attack regarding the sufficiency of the pleading. That immunizing effect is not altered by variations in regional circuit law, because the Federal Rules cannot be amended by judicial interpretation. Accordingly, to the extent any conflict exists between Twombly (and its progeny) and the Forms regarding pleading requirements, the Forms control. Nevertheless, an implausible claim for patent infringement rightly should be dismissed.
JDS Uniphase Corporation v. CoAdna Photonics, Inc., 2014 WL 2918544 (N.D. Cal. 2014) (quotation marks and citations omitted).
Examining Form 18 shows how far plausibility pleading is from what the rules establish as the requisite. To allege patent infringement, the form requires four paragraphs:
1. A statement of jurisdiction (Referencing Form 7: “This action arises under Title 35 of the U.S. Code.”).
2. A statement of patent ownership (“A U.S. patent no. ###### that claims <short description of patent claim> was issued on <date> to the plaintiff who owned it during the infringement and still owns it.”);
3. A statement of infringement (“The defendant has infringed the patent by making, using or selling it.”); and
4. A statement of notice of patent (“A statutory notice was placed on the product by the plaintiff and a written notice of infringement was sent to the defendant.”).
Note that many of these phrases authorized by Form 18 are “conclusory [in] nature.” Iqbal, 556 U.S. at 681. Paragraph 1 states the conclusion that the action is brought under Title 35. Similarly, paragraph 2 establishes ownership without pleading the facts that establish it; paragraph 3 asserts infringement without providing the facts of when this happened, where it occurred, how it was done, or even which products of the defendant were infringing; and paragraph 4 concludes compliance with notice provisions without any specification of the when, where, how or why.
Now, of course, the requirement of pleading a patent infringement complaint (or most other actions, see, e.g., Form 10 & 11) is unclear. Cautious counsel may spend considerably more time drafting a complaint so that it begins to resemble the “who, what, when, where and how” that was required by the code pleading system the Federal Rules replaced. The extra money this is likely to cost may be worth it if it avoids a 12(b)(6) battle over the form of the pleading even though avoiding pleading battles now is as unlike as it was under the code system of pleading.
Rule 84 demands “simplicity and brevity.” Rule 8(e) demands a pleading system “to do justice.” The Supreme Court’s target may have been business and civil rights litigation as were involved in Twombly and Iqbal, but no matter that shows up in federal court is likely to be immune. Let’s argue about the form of the pleading rather than the merits of the action. Counsel: Prepare your demurs and your dilatory and peremptory pleas!