Forms That No Longer Function
Patent litigation runs on rules—specifically, the Federal Rules of Civil Procedure and the local rules of individual federal courts where patent cases are filed. When two rules collide, what gives?
To state a claim for patent infringement (or any other civil claim), a plaintiff must make a short plain statement of the claim under Fed. R. Civ. P. 8. Two relatively recent Supreme Court cases—Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009)—define what counts as a short plain statement of a claim.
At the same time, Fed. R. Civ. P. 84 tells a plaintiff that if he or she submits a complaint that follows one of the forms attached to the federal rules, that complaint is necessarily sufficient to state a claim. For patent litigants, that means Form 18, the bare–bones form that sets out the necessary elements of a patent complaint, is the golden key to federal court.
As courts and commentators (including the authors of this blog) have pointed out, it is highly questionable whether following Form 18 (written before World War II) to the letter would actually satisfy the Supreme Court’s test in Twombly and Iqbal (issued in the last five years). If Twombly and Iqbal suggest that a Form 18 complaint is inadequate, while Fed. R. Civ. P. 84 insists that a Form 18 complaint must be adequate, that contradiction puts district judges in a difficult spot. Although judges have attempted to limit the scope of Form 18 by confining its application to cases of direct infringement, they have by and large followed Rule 84 in concluding that a Form 18 complaint is good enough for the rules, even if it might not be good enough for the Supreme Court.
Fortunately, the Advisory Committee on Civil Rules, the body that proposes changes to the Federal Rules of Civil Procedure, sees the problem. In the report of their latest meeting (see pp. 41 and 625), the committee agreed to take up the question of what to do about the federal forms generally, and Form 18, which they note “has been excoriated,” in particular. These forms, which were drafted in the late 1930s to help lawyers follow the new pleading rules adopted at that time, have passed their expiration date.
We’ve made our own suggestion (addressed at page 650–51 and 671-80 of the committee report) for how to bring Form 18 into the modern era (and into compliance with Twombly and Iqbal), but whether or not the Committee takes up our suggestion, it is good news for patent litigants that the conflict highlighted here stands a chance of being resolved.