The Uncertainty of Patent Pleadings After Iqbal

Patent infringement pleadings often include minimal facts in support of the infringement allegations contained therein. Indeed, Form 18 of the Federal Rules of Civil Procedure, formerly Form 16 prior to the 2007 “restyling” amendments, provides a model pleading for direct and literal patent infringement that merely recites 35 U.S.C. ' 271(a) for the allegation. However, the Supreme Court's recent Twombly and Iqbal decisions have placed in question the validity of Form 18 by reinterpreting the mandated minimal pleading standards required by Fed. R. Civ. P. 8. See Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). An additional question has arisen as to whether the protection afforded by Form 18 is equally applicable to claims of indirect infringement or infringement under the doctrine of equivalents. When faced with the apparent dichotomy of pleading standards, some courts have applied a different ' more relaxed ' standard for direct literal infringement pleadings as compared with indirect or doctrine of equivalents pleadings. This article explores this pleading dichotomy to place the practitioner on notice of this potential trap.