United States: Pleading Patent Infringement Allegations In View Of Iqbal, Twombly, Mczeal, Colida, And Form 18 - A Status Report

Applying the "plausibility" standard announced in Twombly, and reaffirmed in Iqbal, to patent infringement allegations, which traditionally have been guided by the sample patent infringement pleading of Form 18 of the Appendices of Forms to the Federal Rules of Civil Procedure, raises difficult issues for the courts, litigants, and the patent community in general. The following discussion reports on the current state of the law in this area by summarizing the relevant Supreme Court precedents, Form 18, and how the courts are applying Form 18 in the wake of Iqbal.

A. The Supreme Court's Precedents Regarding Notice Pleading Under Rule 8

Under the concept of "notice pleading" embodied in Rule 8 of Federal Rules of Civil Procedure,¹ a complaint only has to provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P 8(a)(2) (2007) (emphasis added). Over a half a century ago in Conley v. Gibson, 355 U.S. 41, 47 (1957), the Supreme Court made clear that Rule 8 merely requires that the complaint "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Further, "Rule 8(a) establishes a pleading standard without regard to whether a claim will succeed on the merits."² Accordingly, the Supreme Court has rejected the contention that to show the "grounds upon which [the claim] rests," a plaintiff must plead facts that show a prima facie case of liability.³

Since Conley, the Supreme Court has steadfastly held that a plaintiff need not provide in its complaint detailed factual allegations that show a prima facie case of liability. But, beginning at least as early as 2005, the Court, in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 347 (2005), expressed concerns that without a robust enforcement of Conley's requirement that a plaintiff plead facts showing the grounds upon which its claim rests, a plaintiff can too easily assert a baseless claim, and thereby attempt to extort a nuisance-value settlement.

Two years later, in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007), the Supreme Court again noted the need for a workable mechanism to weed out baseless claims early in the lawsuit "lest a plaintiff with a largely groundless claim be allowed to take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value."

Twombly relied on this policy goal to hold that "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Id. at 555. Consequently, "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id.

Citing Rule 8(a)(2)'s requirement of "showing that the pleader is entitled to relief," the Court explained in Twombly that

Id. at 555 n.3.

Setting forth a requirement that to "show" an entitlement to relief, a pleading must allege enough facts, which if taken as true, give a district court "plausible grounds" to reasonably infer that the law will allow the plaintiff to recover, the Court explained:

Id. at 556-57.

On May 18, 2009, the Supreme Court again addressed Rule 8's standards, and the "plausible grounds" requirement of Twombly, in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Dispelling contentions that Twombly announced a special pleading rule limited to antitrust actions, the Supreme Court instructed that Twombly's pleading standard applies to all causes of actions because it is based on the Court's "interpretation and application of Rule 8," and Rule 8 "governs the pleading standard 'in all civil actions and proceedings in the United States district courts.'" Id. at 1953. Accordingly, Twombly's plausibility standard applies to all patent-related actions brought in federal court.

Providing further explanation of its "plausible grounds" standard, the Court explained that merely pleading conclusory allegations that the defendant committed an identified legal wrong without pleading facts showing a plausible basis to infer that the defendant did indeed commit the identified wrong does not suffice under Rule 8. In other words, "unadorned, the-defendant-unlawfully-harmed-me accusation[s]" and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements" will not meet a plaintiff's pleading burden. Id. at 1949.

The Court expressly instructed that "Rule 8 ... does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 1950. Accordingly, a complaint must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949.

In summary, Iqbal and Twombly show that to curb baseless suits and give district courts a more useful tool to identify and dismiss frivolous lawsuits early in the proceedings, a plaintiff must plead in its complaint facts that show plausible grounds for the claim, i.e., facts showing something more than a sheer possibility, but less than a proven probability, that the defendant committed acts for which it should be held liable to the plaintiff. This requirement follows from Rule 8(a)(2)'s command that the claim "show[s] that the pleader is entitled to relief" and Conley's requirement that the complaint give notice of the "grounds upon which [the claim] rests." To meet these standards, the plaintiff does not have to plead detailed facts showing a prima facie case of liability, i.e., it does not have to show a probability it will succeed on the merits of its claim.⁴ But the plaintiff must plead sufficient facts that show something "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S. Ct. at 1949. It must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. The "[f]actual allegations must be enough to raise a right to relief above the speculative level[.]" Twombly, 550 U.S. at 555. They must "raise a reasonable expectation that discovery will reveal evidence of illegal [conduct]." Id. at 556. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949.

In response to criticism of the "plausible grounds" standard of Twombly and Iqbal, a bill has been introduced in the Senate, S1504, to congressionally overrule the "plausible grounds" standard. But, the proposed language of the bill merely states that a "Federal court shall not dismiss a complaint under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957)." Given that the holdings of Twombly and Iqbal are directly based on what the Court deems necessary to meet Conley's standard that the pleader give notice as the "grounds upon which [the pleader's claim] rests," the language in the currently proposed bill seems ineffective to overrule the "plausible grounds" standard.

B. Form 18 and its Deficiencies

Form 18 provides a sample complaint for patent infringement stated in four rudimentary paragraphs that recite:

Federal Rules of Civil Procedure, Appendix of Forms, Form 18 (2007).

Rule 84 of the Federal Rules of Civil Procedure expressly states that the pleadings in the Appendix of Forms "are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate." Nevertheless, in its current embodiment, Form 18 is outdated.⁵ For example, Form 18 specifies the infringing acts as "making, selling, and using" without accounting for the fact that 35 U.S.C. § 271(a) has been amended to include importing and offering for sale as additional infringing offenses.⁶

More notably, Form 18 only addresses limited circumstances of direct infringement of a utility patent.⁷ It does not address inducing infringement under 35 U.S.C. § 271(b), contributory infringement under § 271(c),⁷ infringement for filing an improper Paragraph IV certification under § 271(e)(2), infringement for supplying components to be assembled outside of the United States in an infringing manner under § 271(f)(1) or (f)(2), and infringement for using, selling, or importing a product made by a patented process under § 271(g). Additionally, Form 18 does not address pleading joint direct infringement of method claims,⁹ willful infringement under § 284,¹⁰ or a request for attorney's fees under § 285.¹¹ Nor does it address in any fashion allegations of design patent infringement.¹²

Given the numerous variations in pleading patent infringement allegations not addressed by Form 18, its overall usefulness in patent litigation appears questionable.¹³ Despite its shortcomings, however, Form 18 has, in the past, provided guidance to courts in assessing how much detail a patentee must plead as to the acts of the defendant that form the basis of a charge of patent infringement. Specifically, the sample allegation —

— has been repeatedly relied on by the courts to evaluate the level of specifity a patentee must plead in its complaint and particularly whether a patentee must identify in precise detail the accused product and/or the specific claims of the patent it asserts the defendant has infringed.¹⁴

C. Federal Circuit Precedents on Pleading Patent Infringement Allegations and Form 18

Before Twombly and Iqbal, the Federal Circuit took a liberal view of what satisfied "notice pleading" of a patent infringement claim.¹⁵ For example, in Kunkel v. Topmaster Int'l., Inc., 906 F.2d 693, 695 (Fed. Cir. 1990), the Federal Circuit held that a patentee's complaint sufficiently pled a claim of patent infringement where the patentee pled "ownership of a patent still in force, infringement by defendants, and requested as relief treble damages and an injunction, specifically citing the Patent Act, 35 U.S.C. § 284 (1988)." The court further stated that a complaint adequately pled a claim for patent infringement where the patentee "specifically alleged that the defendants have infringed Kunkel's patent by making, using, or selling Kunkel's claimed invention without Kunkel's authority." Id. at 696. The allegation of infringement found sufficient in Kunkel appears to have the same minimal level of detail as in Form 18.

The Federal Circuit has also expressly rejected the notion that a patentee must plead asserted claim constructions to adequately plead a claim for infringement. In Phonometrics, Inc. v. Hospitality Franchise Sys., Inc., 203 F.3d 790, 794 (Fed. Cir. 2000), the court instructed that "[t]he Rule 12(b)(6) pleading requirements for a complaint of infringement cannot be extended to require a plaintiff to specifically include each element of the claims of the asserted patent." Id. Recasting the standard to find an infringement complaint sufficient, the Federal Circuit stated that a complaint need only give "an accused infringer ... sufficient knowledge of the facts alleged to enable it to answer the complaint and defend itself." Id. The court then noted that the patentee's complaint provided sufficient notice to the accused infringer because it "describe[d] the means by which the defendants allegedly infringe." Id.¹⁶

In September 2007, the Federal Circuit handed down McZeal v. Sprint Nextel Corp., 501 F.3d 1354, (Fed. Cir. 2007), where it addressed the sufficiency of a pro se patentee's infringement complaint under Twombly. Over the dissent of Judge Dyk, the panel vacated a Rule 12(b)(6) dismissal because the pro se litigant's complaint,¹⁷ according to the panel, sufficiently pled a patent-infringement claim where it identified the asserted patent, identified a specific accused product and a general reference to "line of wireless VoIP products," and alleged "enough detail to allow the defendants to answer." Id. at 1357. After quoting from Form 18 (Form 16 at that time) as an example for the level of detail a complaint for patent infringement should contain, the panel explained that "a plaintiff in a patent infringement suit is not required to specifically include each element of the claims of the asserted patent." Id. The panel also made clear, that a patentee, at the pleading stage, does not have to fully know or understand how an accused product works to plead a sufficient claim of infringement. The specifics of how the accused product operates, and how that relates to the infringement claim, is left for discovery. Id. at 1358.¹⁸

Interestingly, the panel majority opinion never discusses the "plausible grounds" standard of Twombly. Instead it takes the position that Twombly did not change the pleading standard of Rule 8 as articulated in Conley. Id. at 1357 n.4.

Judge Dyk dissented in part. In his view, Form 18 fails to comply with the pleading requirements of Twombly. Judge Dyk broke his analysis into two parts: literal infringement and infringement under the doctrine of equivalents. As to literal infringement, he faulted Form 18 for not specifying the particular claims of the patent for which the patentee alleged the defendant's product literally infringed and to identify what features in the accused product allegedly met the asserted patent claims. Id. at 1360. Nonetheless, Judge Dyk agreed that in view of Rule 84, the panel was compelled to rule that a complaint that alleged a claim of literal infringement with the same level of generality as in Form 18 was sufficient to state a claim. Id.

As to infringement under the doctrine of equivalents, Judge Dyk concluded that Form 18 does not address infringement under the doctrine of equivalents. Id. at 1361. Thus, he analyzed the complaint by applying his understanding of Twombly without regard to Form 18.

Under his analysis, Judge Dyk concluded that the complaint "utterly fails to provide any meaningful notice as to how Sprint has infringed the claims under the doctrine of equivalents. It fails to specify which limitations are literally infringed and which are infringed by equivalents, or, as to the limitations alleged to be infringed by the doctrine of equivalents, how the accused product is insubstantially different from the patented devices." Id. According to Judge Dyk, the patentee's "conclusory allegations of infringement under the doctrine of equivalents are insufficient" under the standard announced in Twombly. Id. Echoing the Supreme Court's policy concerns of timely weeding out frivolous claims, Judge Dyk noted that

Id. at 1362 (footnotes omitted).

Summarizing his view of the standards that should apply to patent infringement complaints, Judge Dyk stated that patentees should identify the particular claims of the patent they allege are infringed and identify the particular features of the accused product they contend meet the limitations of the asserted claims. Id. at 1363 (citations omitted).¹⁹

In October of 2009, the Federal Circuit addressed the sufficiency of pleading infringement allegations, albeit to a pro se litigant's pleading a claim for design patent infringement, in Colida v. Nokia Inc., No. 2009-1326, 2009 WL 3172724, *1-*2 (Fed. Cir. Oct. 6, 2009) (nonprecedential). There the court affirmed a dismissal of a claim of design patent infringement after finding that as pled the infringement claim was "facially implausible" and the patentee failed to plead facts alleging where the claimed ornamental design appears in the accused product.

Speaking to the standards a complaint for patent infringement must meet in view of Iqbal and Twombly, the Federal Circuit stated:

Id. at *1.

Examining the complaint, the court affirmed the dismissal because the facts alleged in the complaint did not permit the district court to "reasonably infer" the accused infringer infringed the design patent. Id. at *2. The court faulted the patentee for not alleging in its complaint where, in the accused products, the claimed ornamental design could be found. Id. The court further noted that the patentee's amended complaint had "state[d] nothing about how the accused [product] ... bears this [claimed] design or anything remotely similar to it." Id.

The panel's analysis in Colida may signal a departure from McZeal and reliance on Form 18. Notably, the panel faulted the patentee for failing to plead facts showing how the claimed ornamental design could be found in the accused product. Form 18 does not provide illustrative facts showing how the features of the claimed invention are allegedly found in the accused product. Thus, although Colida is nonprecedential and concerns a design patent, it may give support for district courts to require patentees to do more than just identify an accused product in a complaint and make a conclusory allegation that the product infringes the asserted patent.²⁰

D. How District Courts are Responding to Iqbal

Before Twombly and Iqbal, district courts routinely found patent infringement complaints that had infringement allegations of the same general level of detail as in paragraph 3 of Form 18 adequately pled a claim of infringement.²¹ The two issues most often litigated as to the sufficiency of an infringement allegation concerned whether the patentee had to identify the specific claims of the patent it asserted the defendant infringed (most often the patentee did not)²² and whether the patentee provided a sufficient level of detail in identifying the accused products.²³ Accused infringers rarely, if ever, challenged a complaint on the basis that the patentee failed to sufficiently plead facts showing how an identified accused product infringed the asserted patent.²⁴ That will likely change.

Post Twombly and Iqbal, many district courts still find that a complaint that pleads the barebone allegations as in Form 18 passes muster, especially if the court has adopted local patent rules that will flush out infringement contentions during the course of the suit.²⁵ District courts lacking local patent rules have also embraced the view that Twombly does not impose a heightened pleading requirement for patent infringement actions.²⁶ In part, these rulings can be attributed to the fact that Rule 84 states that pleadings show in the Appendices are sufficient.

Nonetheless, some courts are beginning to question whether a complaint that pleads an infringement claim with just the level of general detail as in Form 18 will pass muster under the plausibility standard of Iqbal. For example, in Elan Microelectronics Corp. v. Apple, Inc., 2009 WL 2972374 (N.D. Cal. Sept. 14, 2009), the district court remarked that: "It is not easy to reconcile Form 18 with the guidance of the Supreme Court in Twombly and Iqbal; while the form undoubtedly provides a 'short and plain statement,' it offers little to 'show' that the pleader is entitled to relief." Id. at *2. Nevertheless, the Elan court side-stepped the issue of whether it had to give effect to Form 18 over Iqbal and Twombly by noting that the complaint before pled causes of action, such as inducing and contributory infringement, that Form 18 did not cover. Thus, the court just analyzed the sufficiency of the complaint based on the plausibility standard of Iqbal and Twombly and found that the infringement claims were insufficiently pled.²⁷

E. Concluding Thoughts

As noted in Judge Dyk's dissent in McZeal and the Elan court's comments, the generality of the infringement allegation in Form 18 does not recite facts showing "plausible grounds" to find infringement. Consequently, an undeniable tension exists between applying Form 18 via Rule 84 and following the Supreme Court's directives in Iqbal and Twombly. It seems likely that unless Form 18 is abolished or amended to conform to Iqbal and Twombly,²⁸ future courts will follow Elan's solution by not applying Form 18 to any allegations of infringement that go beyond acts of direct infringement. Some courts may even follow Judge Dyk's conclusion that Form 18 does not apply to allegations of infringement under the doctrine of equivalents. This may result in two distinct pleading standards applying to the same complaint: i) a standard that permits minimal allegations of direct infringement (perhaps limited to only claims of direct literal infringement) and ii) a standard requiring facts showing "plausible grounds" for any other form of infringement alleged in a complaint. Having multiple standards will lead to confusion and inefficiency. In this author's view, to the extent possible, there should be one uniform pleading standard for patent infringement allegations applicable to all forms of infringement and applied the same by all federal courts.

Finally, in considering whether requiring a patentee to plead facts showing "plausible grounds" for its infringement accusations, beyond what Form 18 requires, imposes an undue burden, one should keep in mind a patentee's Rule 11 pre-filing investigation obligation.²⁹ According to the Federal Circuit, a patentee's counsel must "at a bare minimum, apply the claims of each and every patent that is being brought into the lawsuit to an accused device and conclude that there is a reasonable basis for a finding of infringement of at least one claim of each patent so asserted."³⁰ Additionally, the patentee must possess some factual evidence supporting a reasonable inference of infringement before it files its suit. The Federal Circuit has instructed that

Where a patentee has properly performed its Rule 11 pre-filing investigation it should have thereby accumulated the necessary facts that will show "plausible grounds" to reasonably infer the accused infringer has infringed at least one claim of the patent.³² Where a patentee cannot plead facts showing "plausible grounds" of infringement, the question as to the reasonableness of the patentee's pre-filing investigation will become self-evident to the court and the parties. Given that the patentee's attorney-client privilege and work-product immunity often limit an accused infringer's ability to investigate the reasonableness of a patentee's pre-filing investigation, thereby making enforcement of Rule 11 difficult in all but the most egregious circumstances, applying the "plausible grounds" standard of Iqbal may provide a procedural mechanism that, as a practical matter, adds a measure of self-enforcement to the pre-filing investigation requirement.

The foregoing first appeared in the November 2009 issue of Patent Happenings available at www.PatentHappenings.com Other case summaries from that issue include:

• District court holds accused infringer may not assert improper revival of a patent that lapsed for not timely paying a maintenance fee as an affirmative defense to a charge of infringement under the guise of an alleged § 102(c) abandonment
• Questioning deponent as to whether it changed the design of an accused product in response to receiving an opinion of counsel improperly invaded the attorney-client privilege
• Patent infringement claim dismissed because it conflicted with a national security law that compelled the accused infringer to perform the acts accused of infringement
• Northern District of Illinois formally adopts local patent rules

About the Author

Robert A. Matthews, Jr. provides patent-law consulting services to corporate counsel and trial counsel. Specifically, he helps counsel analyze and brief the myriad of substantive and procedural legal issues arising in patent infringement litigations. Matthews authors the Annotated Patent Digest, an eight-volume patent treatise published by West and available on Westlaw, the Patent Jury Instruction Handbook, and the monthly newsletter Patent Happenings®. Matthews has assisted clients with patent matters before the U.S. Supreme Court (KSR and Bilski), the Federal Circuit, the ITC and numerous federal district courts. Further information on the patent-law consulting services Matthews offers, plus a collection of patent-litigation resources, can be found at www.MatthewsPatentLaw.com.

Footnotes

^{1.See generally, Robert A. Matthews, Jr., Annotated Patent Digest § 39:1 General Aspects of Notice Pleading in a Complaint [hereinafter APD]}

^{2.Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002).}

^{3.Id., 534 U.S. at 510 (a prima facie case "is an evidentiary standard, not a pleading requirement.").}

^{4.Indeed, on a motion to dismiss, the district court must still assume the truth of any facts the plaintiff alleges, even if those facts appear improbable. See Iqbal, 129 S. Ct. at 1950. Legal conclusions are not entitled to such deference. Id.}

^{5.Form 18 was originally codified in the Appendix to the Federal Rules of Civil Procedure as Form 16 in 1938. McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1361 (Fed. Cir. 2007) (Dyk, J., concurring-in-part, dissenting-in-part). It was amended in 1963 to modify the prayer for relief. Id. Other than changing the designated form number, the 2007 version of Form 18 uses the same substantive language that has been in effect since 1938.}

^{6.The Patent Act was amended effective January 1, 1996 to add "offering for sale" and "importing" as additional acts of patent infringement. APD § 10:12 Offering a Product as an Infringing Act & § 10:97 Importing a Patented Product into the United States – § 271(a).}

^{7.Judge Dyk has stated the view that Form 18 does not address claims of direct infringement under the doctrine of equivalents, but only claims for literal infringement. McZeal, 501 F.3d at 1361 (Dyk, J., concurring-in-part, dissenting-in-part).}

^{8.See generally, APD § 39:7 Pleading Contributory Infringement and Induced Infringement.}

^{9.See generally, APD § 39:6.50 Pleading Joint Infringement of Method Claims; and § 10:176 Steps of Process Performed by Different Entities – Divided or Joint Infringement Under BMC, et seq.}

^{10.See generally, APD § 39:11 Pleading Willful Infringement.}

^{11.See generally, APD § 39:11.50 Pleading Prayer for § 285 Attorney Fees.}

^{12.See generally, APD § 39:11.25 Pleading Infringement of a Design Patent.}

^{13.Post-Iqbal, some courts, including the Federal Circuit, have relied on the fact that Form 18 does not address claims of indirect infringement and design patent infringement to avoid having to decide whether Iqbal's plausibility standard conflicts with Form 18. E.g., Colida v. Nokia Inc., No. 2009-1326, 2009 WL 3172724, *2 n.2 (Fed. Cir. Oct. 6, 2009) (nonprecedential) ("Form 18 is a sample pleading for patent infringement, but is not tailored to design patents and was last updated before the Supreme Court's Iqbal decision."); Elan Microelectronics Corp. v. Apple, Inc., 2009 WL 2972374, *2-*4 (N.D. Cal. Sept. 14, 2009).
Some district courts, both before and after Twombly, have relied on the overall generality shown in Form 18 to hold by analogy that a patentee may plead claims for indirect infringement and willful infringement with that same level of generality. E.g. FotoMedia Tech., LLC v. AOL, LLC., No. 2:07CV255, 2008 WL 4135906, *2 (E.D. Tex. Aug. 29, 2008); CBT Flint Partners, LLC v. Goodmail Sys., Inc., 529 F. Supp. 2d 1376, 1379-81 (N.D. Ga. Dec. 17, 2007); Meridian Enterprises Corp. v. Bank of America Corp., 2006 WL 3210497, *2 (E.D. Mo. Nov. 3, 2006); Dome Patent L.P. v. Permeable Tech., Inc., 190 F.R.D. 88, 90-91 (W.D.N.Y. 1999).}

^{14.See generally, APD § 39:3 Form 18 – Sample of an Adequate Infringement Complaint (collecting many cases where courts held that since the complaint pled the same level of detail as in Form 18 the complaint withstood an accused infringer's motion to dismiss); APD § 39:4 Identifying Accused Product; and APD § 39:5 Identifying Specific Patent Claims.}

^{15.See generally, APD § 39:2 Notice Pleading of Infringement Claims.
The Federal Circuit presently applies regional circuit law when reviewing the sufficiency of an infringement complaint. APD § 39:32.10 Choice of Circuit Law. Arguments can be made that the country would benefit from one nationally uniform rule as to standards required in a complaint for patent infringement. Cf. Peter J. Karol, Who's at the Helm, The Federal Circuit's Rule of Deference and the Systemic Absence of Controlling Precedent in Matters of Patent Litigation Procedure, 37 AIPLA Q.J. 1 (2009) (arguing that the Federal Circuit should do away with deferring to regional circuit law for procedural issues and apply its own law to such issues).}

^{16.Unfortunately, the court did not recite in its opinion the infringement allegation from the complaint to provide an example of what the court found sufficient to "describe[] the means by which the defendant allegedly infringe[d]" the patent.}

^{17.Courts must apply a liberal construction of complaints filed pro se. Erickson, 551 U.S. at 94 ("A document filed pro se is 'to be liberally construed,' and 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]'"); McZeal, 501 F.3d at 1356 ("Where, as here, a party appeared pro se before the trial court, the reviewing court may grant the pro se litigant leeway on procedural matters, such as pleading requirements. Indeed, the Supreme Court has recognized this less demanding standard."); see generally, APD § 39:32.30 Standards Applied to Pro Se Litigants. Nonetheless, the Federal Circuit's analysis in McZeal does not appear to expressly apply a lower pleading standard due to the pro se status of the patentee.}

^{18.To the extent, the Federal Circuit's statement here is viewed as the patentee not needing to plead facts regarding the specific characteristics of the accused product in a manner that shows a prima facie case of infringement, the panel's statement appears consistent with Swierkiewicz, 534 U.S. at 512, and its notion that "[b]efore discovery has unearthed relevant facts and evidence, it may be difficult to define the precise formulation of the required prima facie case in a particular case."}

^{19.Judge Dyk's call to require patentees to identify specific claims and features of the accused product that correspond to the limitations of the identified asserted claims seems to contrast sharply with the holding of Phonometrics that a patentee is not required to plead facts showing how each limitation of a claim is met by the accused product. In his opinion, Judge Dyk merely notes that Phonometrics predates Twombly and the allegations in Phonometrics were allegedly more detailed than those in McZeal because the Phonometrics "complaint explained the means by which the defendants allegedly infringed.'" Id. at 1363 n.10.}

^{20.See e.g., Johnson v. Strauss, 2009 WL 2916913, *7 (S.D. Ohio Sept. 4, 2009) (dismissing pro se patentee's claim of design patent infringement because the patentee failed to plead any allegations showing what ornamental design of the accused infringer he alleged infringed).}

^{21.See generally, APD § 39:3 Form 18 – Sample of an Adequate Infringement Complaint (collecting cases).}

^{22.See generally, APD § 39:5 Identifying Specific Patent Claims. But see Taurus IP, LLC v. Ford Motor Co., No. 2008 WL 656533, *5 (W.D. Wis. Feb. 4, 2008) (granting accused infringer's motion for a more definite statement and requiring patentee to identify in its complaint which specific claims of the patent it asserted are infringed); IP Cleaning S.p.A v. Annovi Reverberi, S.p.A, 2006 WL 5925609, *1 (W.D. Wis. Oct. 27, 2006) (as part of pretrial conference order on a matter before Judge Crabb, ruling that parties had to identify specific asserted patent claims in the pleadings). See also McZeal, 501 F.3d at 1361 (Dyk, J., concurring-in-part, dissenting-in-part) (stating the view that patentees should be required to identify in their complaint the particular claims of the patent they allege are infringed).}

^{23.See generally, APD § 39:4 Identifying Accused Product.}

^{24.Most likely, this arose from the Federal Circuit's holding in Phonometrics that a patentee did not have to plead in its complaint how the accused product meets each element of the asserted claims.}

^{25.See e.g., Advanced Analogic Tech., Inc. v. Kinetic Technologies, Inc., 2009 WL 1974602, *1 (N.D. Cal. July 8, 2009); Sikes Cookers & Grill, Inc. v. Vidalia Outdoor Products, Inc., 2009 WL 427227, *3 (N.D. Ga. Feb. 19, 2009); FotoMedia Tech., LLC v. AOL, LLC., 2008 WL 4135906, *2 (E.D. Tex. Aug. 29, 2008); PA Advisors, LLC v. Google Inc., 2008 WL 4136426, *6 (E.D. Tex. Aug. 8, 2008); CBT Flint Partners, LLC v. Goodmail Sys., Inc., 529 F. Supp. 2d 1376, 1379-81 (N.D. Ga. Dec. 17, 2007).}

^{26.See e.g., In re Papst Licensing GMBH & Co. KG Litigation, 631 F. Supp. 2d 42, 45-46 (D.D.C. July 6, 2009); S.O.I.TEC Silicon On Insulator Tech., S.A. v. MEMC Elec. Materials, Inc., 2009 WL 423989, *1-*2 (D. Del. Feb. 20, 2009); Resonance Technology, Inc. v. Koninklijke Philips Elecs., N.V., 2008 WL 4330288, *2 (C.D. Cal. Sept. 17, 2008); Edge Capture L.L.C. v. Lehman Bros. Holdings, Inc., 2008 WL 4083146, *1 (N.D. Ill. Aug. 28, 2008); Digital Technology Licensing LLC v. Sprint Nextel Corp., 2008 WL 4068930, *2-*5(D.N.J. Aug. 27, 2008); Aspex Eyewear, Inc. v. Clariti Eyewear, Inc., 531 F. Supp. 2d 620, 622 (S.D.N.Y. Jan. 24, 2008); Taltwell, LLC v. Zonet USA Corp., 2007 WL 4562874, *14 (E.D. Va. Dec. 20, 2007). Cf. Phillip M. Adams & Assoc., L.L.C. v. Dell, Inc., 2008 WL 200340, *1 (D. Utah Jan. 22, 2008) (where accused infringer sold 117 different models of computers and 174 different motherboards, granting accused infringer's motion to require patentee to provide a more definite statement as to what products it accused of infringing, but first granting patentee limited discovery into the accused infringer's products before it had to provide the more definite statement).}

^{27.District courts in other patent-law contexts are beginning to apply the "plausible grounds" standard of Iqbal in analyzing the sufficiency of pleadings. E.g. Sandisk Corporation v. LSI Corp., 2009 WL 3047375, *2 (N.D. Cal. Sept. 18, 2009) (granting Rule 12(b)(6) motion to dismiss accused infringer's state-law unfair competition claims based on patentee's alleged publicizing its infringement allegations to the accused infringer's customers in bad faith, the court finding that the accused infringer only pled the element of bad faith and the objective baselessness of the infringement claim in conclusory fashion and did not plead facts to make the contention of bad faith and objectively baseless plausible as required under Iqbal, therefore federal patent law preempted the state-law unfair competition claims, but giving the accused infringer 14 days to file an amended pleading to correct the deficiencies).}

^{28.The Patent Litigation section of the American Intellectual Property Association has established a subcommittee, of which this author is a member, that is studying Iqbal and Form 18 and considering what recommendations, if any, should be made as to amending Form 18 or challenging Iqbal.}

^{29.See generally, APD § 33:43 Rule 11 Requires Patentees Investigate Infringement Claims.}

^{30.View Engineering, Inc. v. Robotic Vision Sys., Inc., 208 F.3d 981, 986 (Fed. Cir. 2000).}

^{31.Judin v. United States, 110 F.3d 780, 784 (Fed. Cir. 1997). See generally, APD § 33:45 Evidentiary Support of Infringement Must Exist Before Filing Suit}

^{32.Cf. Elan, 2009 WL 2972374, at *4 ("To the extent Apple is suggesting that a litigant may avail itself of Rule 11(b)(3) when there are no factual circumstances known to it that would constitute a 'good reason to believe' a claim exists, it is reading the rule too liberally. Here, for example, regardless of what knowledge may lie exclusively in the possession of Elan or others, Apple should be able to articulate at least some facts as to why it is reasonable to believe there is infringement. Simply guessing or speculating that there may be a claim is not enough.").}

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