Alert
Alert
By Evan Finkel
06.19.12
The recent opinion of the Federal Circuit in In re Bill of Lading Transmission and Processing System Patent Litigation, – F.3d – (Fed. Cir. Jun. 7, 2012)("In re Bill of Lading"), addresses in substantial detail the requirements for adequately pleading claims for direct infringement (including the direct infringement that is a necessary prerequisite for pleading indirect infringement), inducing infringement, and contributory infringement.
The Federal Circuit ruled that Form 18 to the Federal Rules defines the requirements for pleading direct infringement. If a pleading meets the requirements of Form 18, then it is sufficient. The Supreme Court's decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), requiring that a complaint plead "enough factual matter" that, when taken as true, "state[s] a claim to relief that is plausible on its face" did not and could not change the requirements for pleading direct infringement. Congress, and only Congress, has the power to change the requirements for pleading direct infringement by amending Form 18.
Therefore, to plead direct infringement, the complaint does not have to identify a specific direct infringer, or plead facts regarding each element of any claim being met, or even identify any specific claim of the patent that is infringed. None of those elements are set out in Form 18 for pleading direct infringement.
However, because Form 18 does not apply to indirect infringement claims, pleading such claims must satisfy Twombly and Iqbal. In evaluating whether a complaint states a plausible claim for indirect infringement, the court must draw all reasonable inferences in favor of the plaintiff (non-moving party). The court must choose the inferences that favor the plaintiff as long as they are "plausible." And, as a general matter, the court must accept as true the allegations contained in the complaint as long as nothing in the complaint convinces the court that it should decline to accept the truthfulness of the allegations.
These and other important pronouncements from the Federal Circuit in In re Bill of Lading are discussed in some detail herein. However, please note that Judge Newman wrote a dissent to the Court's refusal to apply Iqbal and Twombly to the direct infringement claims, and opined that meeting the requirements of Form 18 is not in and of itself sufficient. It is quite possible that the Federal Circuit will grant a rehearing en banc to take up this issue with the full court.
Download: Federal Circuit Provides Details on How to Adequately Plead Certain Infringement Claims