Supreme Court’s Adoption of Proposed Amendments to the Federal Rules of Civil Procedures Will Require Heightened Pleading Standards in Patent Infringement Actions
Recently, the Supreme Court adopted proposed amendments to the Federal Rules of Civil Procedure, that barring any modification by congressional action, may eliminate the difference in pleading standards between patent infringement actions and all other federal actions. However, such standardization of pleading requirements may be short lived in view of the reintroduction of the Innovation Act, H.R. 9, in the House of Representatives, which proposes heightened pleading standard for patent infringement actions.
By way of background, the question of how much fact must be contained in a complaint for it to withstand a Rule 12(b)(6) motion to dismiss was seemingly laid to rest in 2007 when the Supreme Court, in Bell Atlantic Corp. v. Twombly, clarified that “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.” However, it was not until the high Court’s decision in Ashcroft v. Iqbal, that the Supreme Court further clarified that its decision in Twombly — the heightened pleading standard to state more than merely the theory of the claim — applied to all federal civil actions.
But not exactly all federal civil actions. The Federal Rules of Civil Procedures append a number of sampling pleading forms, including under Rule 84, Form 18, “Complaint for Patent Infringement.” While a Form 18 Complaint sufficiently serves as a “notice pleading,” some have advocated that it fails to state a “plausible” claim for relief as required by Twombly and Iqbal and does not meet the heightened pleading requirement established by the Supreme Court. Nonetheless, in 2012, the Federal Circuit in R&L Carriers v. Driver Tech LLC, held that “to the extent . . . that Twombly and its progeny conflict with the forms and create differing pleadings requirements, the forms control.” Thus, the Federal Circuit provided that federal civil patent infringement complaints need not meet the heightened pleading standard set forth in Twombly/Iqbal.
However, the Supreme Court’s adoption of the proposed amendments to the Federal Rules of Civil Procedure includes the Judicial Conference recommended abolition of Rule 84 and correspondingly, Form 18. With Rule 84 no longer a part of the Federal Rules of Civil Procedure, the Twombly standard will be applicable to patent infringement actions.
This recent action by the Supreme Court for the application of the Twombly standard to patent infringement actions may soon be trumped if certain pleadings provisions of the reintroduced Innovation Act, H.R. 9, in the House of Representatives are enacted into law. As we have previously reported, such provisions of the Innovation Act, H.R. 9, include heightened pleading standard for patent infringement actions. Notably, the requirements being proposed in the bill exceed the Twombly requirements and would affect the recent move by the adoption of the amendments to standardize the pleading requirements in all federal cases.
Absent any action by Congress, the amended rules will become effective on December 1, 2015. We will continue to provide any updates with regard to developments of the Innovation Act, H.R. 9, or other legislation that would effect the pleading standards for patent infringement actions.