With the amendment to the Federal Rules of Civil Procedure going into effect on December 1, 2015 (absent an act of Congress to the contrary), Rule 84 and all of the accepted forms that go with it –including Form 18 for patent complaints – will be abrogated. As many of you know and have experienced, Form 18 suggests that little more than an identification of the patent(s)-in-suit and a general assertion that the defendant infringes is sufficient to support a claim for patent infringement. Form 18 has served as an effective shield against the heightened pleadings standards set forth in the Supreme Court's decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, as the Federal Circuit acknowledged in K-Tech Telecommunications, Inc. v. Time Warner Cable, Inc., 714 F.3d 1277 (Fed. Cir. 2013).
With the abrogation of Form 18 on December 1, we enter a brave new world where Twombly/Iqbal governs patent cases ... we think. In truth, the amendments do not specifically address what abrogating Form 18 really means, but its absence strongly supports that patent owners can no longer file a bare-bones Complaint. Instead, as Judge Robert E. Payne noted even pre-amendment in Macronix International Co. v. Spansion Inc. (finding that Twombly/Iqbal imposes a stricter pleading standard than embodied in Form 18), “before filing a complaint, counsel must ascertain exactly what claims should allege[ ] to be infringed and how they are infringed.” 4 F. Supp.3d 797, 803 (E.D. Va. 2014) (emphasis added).
It remains to be seen how courts react to the absence of Form 18, but practitioners asserting patent infringement complaints under the amended rules will be well-served to provide more fulsome allegations that, at a minimum, identify one or more claims of the patent(s)-in-suit allegedly infringed, identify one (or more) products/systems/methods/etc., allegedly infringing such claim(s) of the patent(s)-in-suit, and specifically describe – on an element by element basis – how at least one product/system/method/etc., infringes one claim of the patent(s)-in-suit. This should be enough to comply with Twombly/Iqbal (at least until we have some decisions saying otherwise). On the other side of the "v," if presented with a Form-18ish complaint filed in the wake of the amendments, practitioners should consider a challenge under Twombly/Iqbal.
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