In the recent case of In re Bill of Lading Transmission and Processing System Patent Litigation, the Federal Circuit ruled that Form 18 appended to the Federal Rules of Civil Procedure is the standard for pleading a claim of direct patent infringement.
Form 18 calls for what this writer believes is something less than adequate in terms of pleading a claim of direct patent infringement. According to the CAFC, all that is required to properly state a claim for direct patent infringement is: (1) an allegation of jurisdiction; (2) a statement that the plaintiff owns the patent; (3) a statement that the defendant is infringinging the patent by making, using, importing, offering to sell, or selling a device corresponding to the patent; (4) a statement that notice of infringement has been given; and, (5) a demand for damages and/or an injunction. In re Bill of Lading, Slip Op. at 14.
The issues on appeal were more complicated than a straight direct infringement pleading question. At issue were the pleading standards for indirect infringement (contributory or inducement). But, as is well-established, a claim of indirect infringement requires a direct infringer. Thus, while the CAFC held that claims of indirect infringement are not covered by Form 18, and are required to meet the pleading standards of Twombly and Iqbal, the underlying allegations regarding a direct infringer in an indirect infringement claim need only satisfy what is required by Form 18, which is pretty “bare bones.”
Judge Newman dissented to the extent she believes that Form 18 is inadequate even for direct infringement.
This is a pretty clear statement from at least a few of the judges on the CAFC that Form 18 governs direct infringement claims. Therefore, unless other judges on the CAFC deviate from this opinion, or call it into question, or Form 18 is eliminated, it seems that a 12(b)(6) motion as to a direct infringement claim would likely be a waste of time and money.
Plus, with the number of courts that have adopted some type of local patent rules increasing, the likelihood of successfully moving the court to require detailed allegations of direct infringement is slight because the court would simply say, “you will receive the plaintiff’s infringement contentions soon enough – no need to grant the motion.”
So, all in all, In re Bill of Lading sounds like the death knell for 12(b)(6) motions directed to direct infringement claims, except perhaps with respect to the most skeletal pleadings.