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The tension between an extremely barebones Federal Rules

of Civil Procedure Form 18 for patent infringement lawsuits and Supreme Court case law through Twombly and Iqbal has made it difficult for courts to dismiss frivolous patent litigation at the complaint stage. In this article, I look at the Federal Circuit’s treatment of Twombly and Iqbal, empirically evaluate 12(b)(6) motions from various district courts, and summarize local patent rules from the Eastern District of Texas. I conclude that the biggest likely impact of statutorily heightening and defining patent pleading standards through the proposed Innovation Act would be to provide much-needed uniformity in the endeavor of gatekeeping weak lawsuits, without serious adverse impact.


Recently, there has been growing concern that our courts have become inundated with frivolous claims of patent infringement.1 So- called “patent trolls” bring suits while lacking any basis for believing they will actually win on their patent infringement claims, but with the hope that the defendant will settle and pay these trolls money to go away.2 According to some reports, patent trolls now account for a † J.D. 2014, U.C.L.A. School of Law. This paper was written as part of an independent study with Prof. Doug Lichtman, whom the author wishes to thank.

The author would also like to thank Prof. Ted Sichelman, University of San Diego School of Law. The author is now an attorney at Kilpatrick Townsend & Stockton LLP.

1 See James Bessen, Patent Trolling Was Up 11 Percent Last Year, WASH. POST (Jan. 31, 2013), http://www.washingtonpost.com/blogs/the-switch/wp/2014/01 /31/patent-trolling-was-up-11-percent-last-year/ (“Is there a patent troll crisis?

Conventional wisdom holds that there is.”).



INNOVATION 1 (2013), available at https://www.whitehouse.gov/sites/default/ files/docs/patent_report.pdf (noting that patent trolls focus on aggressive litigation and use tactics such as suing large numbers of companies, creating shell companies to hide the real plaintiff, and overestimating the reach of their patents).

196 PLEADING PATENTS [Vol. 13 majority of all patent assertions in the United States.3 Patent trolls, unsurprisingly, often assert weak patents.4 However, weak patents are not limited to non-practicing entities or patent assertion entities – several times large, operating companies also assert weak patents in litigation.5 The legislature has been considering various approaches to tackle the issue of frivolous lawsuits, especially patent assertion suits. The Innovation Act,6 sponsored by Rep. Goodlatte, is a comprehensive bill addressing different aspects of patent litigation.7 One of its major proposed changes is a heightened pleading requirement.8 The Innovation Act has already passed in the House.9 On February 5, 2015, Rep.

Goodlatte reintroduced his patent reform bill.10 The aim of this article is to predict whether raising pleading standards for patent-related claims is a legitimate way of filtering out unmeritorious lawsuits. First, I examine the United States Supreme Court’s changes to pleading requirements by surveying case law. By comparing claims of direct and indirect infringement after the key Supreme Court cases, I evaluate the effect of the new pleading standards.

Then, I evaluate the proposals of the Innovation Act. Additionally, I compare the Innovation Act’s proposed heightened pleading requirements to the local rules of the Eastern District of Texas. My analysis leads to the conclusion that the proposed heightened pleading standards of the Innovation Act would provide uniformity to patent pleading cases, and also likely be an efficient means of keeping out frivolous lawsuits.

3 Mark A. Lemley & A. Douglas Melamed, Missing the Forest for the Trolls, 113 COLUM. L. REV. 2117, 2119 (2013).

4 Id. What constitutes a ‘weak patent’ is of course debatable. Here, I am using the term to refer to patents that are likely to be invalidated in a strong invalidation proceeding.

5 See generally, Ted Sichelman, The Vonage Trilogy: A Case in “Patent Bullying”, 90 NOTRE DAME L. REV. 543 (2014).

6 H.R. 3309, 113th Cong. (2013).

7 Dennis Crouch, New Patent Legislation: Innovation Act of 2013, PATENTLY-O (Oct. 24, 2013), http://patentlyo.com/patent/2013/10/new-patent-legislationinnovation-act-of-2013.html.

8 Id.

9 Timothy B. Lee, Patent Reform Bill Passes the House 325 to 91. Here’s What You Need to Know, WASH. POST (Dec. 5, 2013), http://www.washingtonpost.


10 Dennis Crouch, Patent Reform: Innovation Act of 2015, PATENTLY-O (Feb. 5, 2015), http://patentlyo.com/patent/2015/02/patent-reform-innovation.html.



Nuisance litigation is not unique to patent law. Various civil procedural devices exist to prevent the progress of lawsuits when it has become clear that further use of judicial resources would be wasteful.11 One of the earliest points at which the judicial system can filter out unmeritorious lawsuits is at the pleading stage.12 Although heightened pleading requirements aim to keep discovery costs low, they are not always seen as the best solution to discovery abuses.13 The United States Supreme Court, through the landmark decisions of Bell Atlantic Corp. v. Twombly14 and Ashcroft v. Iqbal,15 effectively raised the bar as far as the standard for what a plaintiff must allege in her complaint for a civil lawsuit to proceed beyond the pleading stage—although according to the Court, it was simply reiterating the Federal Rules of Civil Procedure (FRCP) standard.16 To dispel any conjecture that Twombly might be applicable only to antitrust cases, Iqbal affirmed the holding in Twombly, and made it unambiguously applicable to all kinds of civil lawsuits. Iqbal suggested a two prong approach, requiring: (1) the distinguishing of facts from legal conclusions; and (2) a plausibility standard, as opposed to a possibility standard.17 11 Louis Kaplow, Multistage Adjudication, 126 HARV. L. REV. 1179, 1180 (2013).

12 Id.

13 See, e.g., Patrick E. Higginbotham, The Present Plight of the United States District Courts, 60 DUKE L.J. 745, 751–52 (“[P]articularized pleading is a poorly tailored response [to discovery abuses]. Broad access to discovery is often a necessity in suits by private attorneys general, especially in a country so dependent on private suits to enforce federal normative standards.”).

14 550 U.S. 544 (2007).

15 556 U.S. 662 (2009).

16 The Court instead insisted it was simply interpreting Rule 8(a) of the FRCP, which only requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). However, it is widely acknowledged that pleading standards have, in effect, changed since Twombly and Iqbal. See, e.g., Douglas G. Smith, The Evolution of a New Pleading Standard: Ashcroft v. Iqbal, 88 OR. L. REV. 1053, 1054 (2009) (discussing the “new” standard post-Twombly).

17 William M. Janssen, Iqbal “Plausibility” in Pharmaceutical and Medical Device Litigation, 71 LA. L. REV. 541, 563 (2011) (“The standard will not be satisfied by what the Court denominated as bald, non-factual conclusions of law.... ‘[W]ithout some further factual enhancement [these conclusions] stop[] 198 PLEADING PATENTS [Vol. 13 Iqbal and Twombly, although applicable to patent infringement suits equally in theory, did not have the same effect in patent suits due to Form 18 of the FRCP.18 Form 18 requires a plaintiff only to make a very barebones pleading contrary to Iqbal’s intentions—by only requiring cursory and conclusory statements about the patent’s ownership, the act of infringement, and notice.19 Form 18 effectively supersedes Twombly and Iqbal because it comes straight from the legislature, specifically for suits of direct patent infringement.20 However, Form 18 does not apply to claims of indirect patent infringement. Indirect infringement occurs when the accused infringer does not practice a patent himself, but rather contributes to an overall act of infringement, or induces a third party into committing an act of infringement.21 The elements involved in contributory infringement or short of the line between possibility and plausibility of “entitle[ment] to relief.”’” (final alteration in original) (quoting Twombly, 550 U.S. at 557).

18 FED. R. CIV. P. FORM 18; see also FED. R. CIV. P. 84 (“The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.”).


FED. R. CIV. P. FORM 18. The entire text of Form 18 reads:

1. Statement of Federal Jurisdiction

2. On Date, United States Letters Patent No. _________________

were issued to the plaintiff for an invention in an electric motor. The plaintiff owned the patent throughout the period of the defendant’s infringing acts and still owns the patent.

3. The defendant has infringed and is still infringing the Letters Patent by making, selling, and using electric motors that embody the patented invention, and the defendant will continue to do so unless enjoined by this court.

4. The plaintiff has complied with the statutory requirement of placing a notice of the Letters Patent on all electric motors it manufactures and sells and has given the defendant written notice of the infringement.

Therefore, the plaintiff demands:

(a) a preliminary and final injunction against the continuing infringement;

(b) an accounting for damages; and (c) interest and costs.

20 See infra Part III.A.

21 35 U.S.C. § 271(b)–(c) (2012) ((“Whoever actively induces infringement of a patent shall be liable as an infringer.”) See also Global-Tech Appliances, Inc. v.

SEB SA, 131 S.Ct. 2060 (2011)); 35 U.S.C. § 271(c) (“Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of No. 1] DUKE LAW & TECHNOLOGY REVIEW 199 inducement of infringement are different from direct infringement; hence Form 18 does not provide a framework for pleading indirect infringement.22 The more stringent pleading standards of Twombly and Iqbal still apply to cases of indirect infringement.


There have been many empirical studies of district court cases applying Iqbal to motions to dismiss.23 One such study from 2011 argues that district and circuit courts applied Iqbal non-uniformly in the years following the decision.24 In general, the number of 12(b)(6) motions that were filed and sustained increased significantly, with almost all of them citing to Iqbal or Twombly’s plausibility standard.25 The Federal Circuit has addressed the question of applying Iqbal to patent pleading in two key cases – McZeal v. Sprint Nextel Corp.26 and K-Tech Telecommunications v. Time Warner. 27 A. Federal Circuit’s Approach to Patent Pleading After Iqbal

1. Direct Infringement i. McZeal v. Sprint Nextel Corp.

The first time the Federal Circuit was asked to apply Iqbal in a patent pleading case was in McZeal. McZeal was a pro se plaintiff, alleging that Sprint Nextel infringed his U.S. Patent No. 6,763,226 (hereinafter “the ’226 patent”) through the Motorola i930 cellular telephone.28 McZeal filed a “motion for a temporary restraining order, a commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.”) 22 See FED. R. CIV. P. FORM 18 (stating only that “defendant... is still infringing the Letters Patent by making, selling, and using [the patented invention].” (emphasis added)).

23 E.g., Colleen McNamara, Iqbal as Judicial Rorschach Test: An Empirical Study of District Court Interpretations of Ashcroft v. Iqbal, 105 NW. U. L. REV.

401 (2011).

24 Id. at 433.

25 Lonny Hoffman, Twombly and Iqbal’s Measure: An Assessment of the Federal Judicial Center's Study of Motions to Dismiss, 6 FED. CTS. L. REV. 1, 1 (2011).

26 McZeal v. Sprint Nextel Corp., 501 F.3d 1354 (Fed. Cir. 2007).

27 K-Tech Telecomms., Inc. v. Time Warner Cable, Inc., 714 F.3d 1277 (Fed.

Cir. 2013).

28 McZeal, 501 F.3d at 1355.

200 PLEADING PATENTS [Vol. 13 preliminary injunction, a permanent injunction, and a request for an expedited hearing.”29 The district court granted Sprint’s motion to dismiss the ninetyfive page complaint, concluding that the complaint did not state a claim.30 The district court did not even grant an opportunity for McZeal to amend the complaint, stating the complaint was irreparable because it was not just “missing facts” but lacked “any facts” at all.31 On appeal, the Federal Circuit reversed. It held that Twombly did not alter the pleading standard for patent infringement cases, specifically one brought by a pro se plaintiff.32 In the opinion by Judge Archer, the Federal Circuit referenced what might be termed conclusory allegations, to support its view that McZeal’s case was well pleaded.33 Under the court’s reasoning, McZeal (1) asserted ownership of the ’226 patent; (2) named Sprint Nextel as defendants; (3) alleged that the ’226 patent was infringed; (4) stated that Sprint Nextel’s “machine[s] physically... perform[ed] all of the basic elements contained in the patent claims... and further alleged under the doctrine of equivalents”;

and (5) identified the areas of patent law implicated by the case.34 Accordingly, nothing more was required to survive a Rule 12(b)(6) motion.

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