Description

Since the Judicial Conference of the United States and the Supreme Court eliminated Form 18 in December 2015, it is not enough to plead that a defendant makes, uses, or sells products that practice a patented invention to meet the pleading standards. The federal district courts now assess patent infringement complaints about their sufficiency under the plausibility standard articulated in Bell Atlantic Corp. v. Twombly (U.S. 2007) and Ashcroft v. Iqbal (U.S. 2009).

However, the courts are applying the standards differently. Consequently, pleading standards now vary, even among judges in the same district. The Federal Circuit recently addressed pleading requirements and provided some guidance in its decision in the Bot M8 v. Sony case (July 2021). Patent litigators should know how courts in which their cases are filed have applied the standard and draft their complaints accordingly.

In Bot M8, the court reiterated that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." The court stated that a plaintiff need not "prove its case at the pleadings stage," nor must it plead infringement on an element-by-element basis. The court held it is sufficient if "a complaint place the alleged infringer on notice of what activity ... is being accused of infringement." The court also provided several factors that would impact the level of detail required for a complaint.

Listen as our authoritative panel of IP attorneys examines the pleading requirements in patent infringement cases and what is the right amount when pleading patent infringement cases. The panel will discuss how the courts have addressed the issue and best practices for meeting the pleading requirements.